LOUIS BELLOMO AN INDIVIDUAL AND SHAC LLC SAPPHIRE LV GENTLEMAN CLUB DOMESTIC LIMITED LIABILITY COMPANY v. THUNDER ROYBAL AN INDIVIDUAL (2026)

ORDER AFFIRMING IN PART, REVERSING IN PART AND REMANDING

This is an appeal from a judgment on a jury verdict; order denying a motion for a new trial; and order awarding attorney fees, costs, and interest in a negligence matter. Eighth Judicial District Court, Clark County; Michael A. Cherry, Senior Judge, Tara D. Clark Newberry, Judge.

Appellant Louis Bellomo's vehicle struck respondent Thunder Roybal, who was riding his bike in a left turn lane on the roadway. Bellomo attempted to flee the scene but was stopped by witnesses. Roybal sustained injuries to his neck, shoulder, and spine, and underwent several surgeries as a result. At the time of the accident, Bellomo was driving a vehicle for his employer, appellant SHAC, LLC, a/k/a Sapphire LV Gentleman's Club. Following a ten-day jury trial, the jury rendered a verdict for Roybal in the amount of $14,126,607.74, and the district court issued a final judgment on the jury verdict. Appellants appealed the final judgment, an order denying a motion for new trial, and an order awarding attorney fees and costs, arguing that (1) the jury's verdict was excessive, (2) the district court abused its discretion in awarding attorney fees, and alternatively, (3) the attorney fees were unreasonable.

This court originally issued an order of affirmance, holding that the jury's damage award was not excessive and that the award of attorney fees was proper. Following this court's order affirming the final judgment, appellants petitioned for rehearing pursuant to NRAP 40(a). Having considered that petition, we conclude that rehearing is warranted on one issue—the reasonableness of the attorney's contingency fee being awarded in full—based on our recent decision in Clark v. Marin, 142 Nev., Adv. Op. 47, 592 P.3d 417, 434 (2026). See NRAP 40(a)(3) (“A petition for rehearing ․ may be granted ․ [w]hen a new rule of law, directly controlling on the disposition of the issues in the case, has issued ․”).Our conclusions as to the remaining issues on appeal stand.

The jury's damage award was not excessive and no new trial is warranted

Following the verdict, appellants moved for a new trial pursuant to NRCP 59, which the district court denied. “The decision to grant or deny a motion for new trial rests within the sound discretion of the trial court,” BMW v. Roth, 127 Nev. 122, 133, 252 P.3d 649, 657 (2011) (internal quotation marks omitted), and this court reviews a district court's decision to grant or deny a motion for a new trial for an abuse of discretion, Lioce v. Cohen, 124 Nev. 1, 20, 174 P.3d 970, 982 (2008). “While review for abuse of discretion is ordinarily deferential, deference is not owed to legal error.” BMW, 127 Nev. at 133, 252 P.3d at 657 (quoting AA Primo Builders, LLC v. Washington, 126 Nev. 578, 589, 245 P.3d 1190, 1197 (2010)). Relevant to the instant matter, NRCP 59(a)(1)(F) requires a new trial when “excessive damages appear[ ] to have been given under the influence of passion or prejudice.” See Quigley v. Cent. Pac. R.R. Co., 11 Nev. 350, 372-73 (1876).

Objective criteria

Appellants contend that the damages award here is excessive and resulted from prejudice. They argue that the district court abused its discretion when it denied appellants’ motion for a new trial after refusing to compare the verdict with objective criteria, such as verdicts in similar cases.

Here, the district court correctly analyzed appellants’ motion for a new trial according to the enumerated conditions of NRCP 59(a)(1), which requires a party seeking a new trial to show both the presence of at least one of the conditions and that it sustained actual prejudice as a result. See also Quigley, 11 Nev. at 372-73. This is the proper analysis to address appellants’ excessive damages challenge; thus, the district court did not abuse its discretion in applying this standard to appellants’ arguments.

Moreover, the district court did not abuse its discretion in refusing to assess the damages award against objective criteria. We have previously doubted the value of utilizing objective criteria when assessing the adequacy of a pain and suffering damages award. Brownfield v. F. W. Woolworth Co., 69 Nev. 294, 296, 248 P.2d 1078, 1079 (1952) (recognizing “elements of pain and suffering are wholly subjective” and cannot “be calculated by reference to some objective standard”); Miller v. Schnitzer, 78 Nev. 301, 308-09, 371 P.2d 824, 828-29 (1962) (recognizing the doubtful value of comparing damage awards in similarly situated cases), abrogated on other grounds by Ace Truck & Equip. Rentals, Inc. v. Kahn, 103 Nev. 503, 746 P.2d 132 (1987). Moreover, Wyeth v. Rowatt recognized that considering comparable verdicts to determine the appropriateness of compensatory damages would constitute an abuse of discretion. 126 Nev. 446, 472 n.10, 244 P.3d 765, 783 n.10 (2010). Therefore, we conclude the district court did not abuse its discretion in refusing to consider comparable verdicts or other objective criteria in its analysis.

Attorney misconduct

Next, appellants argue that improper comments made by Roybal's counsel during closing argument influenced the jury to issue an excessive damages award based on passion or prejudice. We review alleged attorney misconduct de novo while giving “deference to the district court's factual findings and application of the standards to the facts.” Lioce, 124 Nev. at 20, 174 P.3d at 982.

At trial, appellants sought to limit their liability by arguing a comparative fault theory. To refute appellants’ comparative fault arguments, Roybal referenced the term “discount” on multiple occasions during closing arguments. In the first two instances, Roybal represented to the jury that appellants sought a “discount” at trial. Roybal further insisted that appellants should be held accountable for their actions and not receive a “discount.” Finally, Roybal argued that he was entitled to a specific amount of damages, and that appellants should not be given a “discount” for the pain they inflicted on him. Appellants contend that Roybal's “discount” argument improperly shifted the burden of proof for damages from the plaintiff to the defendant.

Because appellants argued a comparative fault theory at trial, we read Roybal's “discount” comments as disputing and attacking appellants’ position. In context, these comments cannot be reasonably interpreted as shifting the burden to appellants to disprove Roybal's damages. This court is therefore unconvinced that Roybal's comments amounted to misconduct. Further, even if these comments did amount to error, we are not persuaded that the jury would have reached a different result, or that the alleged attorney misconduct influenced the jury to issue an award based on passion or prejudice. Cox v. Copperfield, 138 Nev. 235, 239, 507 P.3d 1216, 1222 (2022) (holding tha entitlement to a new trial requires the movant establish grounds and prejudice).

Misleading testimony

Appellants also argue they were wrongly precluded from rebutting misleading testimony on two occasions, contributing to the jury returning an excessive verdict based on passion or prejudice. First, appellants argue they were wrongly precluded from presenting evidence that Roybal applied for disability benefits prior to the instant accident. Appellants argued in their motion for a new trial that evidence of Roybal's disability application was improperly excluded, but on appeal, they instead argue that testimony from Roybal's ex-wife was improperly excluded. Because appellants present inconsistent arguments before the district court and this court regarding what evidence was improperly excluded, we agree with Roybal's contention that this issue has been waived. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) (explaining that issues not argued below are “deemed to have been waived and will not be considered on appeal”).

Second, appellants complain they were precluded from arguing that Roybal's doctor was overly cautious for recommending a surgery that mitigated a risk which had only a 30% chance of materializing. At trial, Roybal's doctor testified as to why he decided to anchor Roybal's neck at a particular level during one of Roybal's surgeries. On appeal, appellants argue that the district court abused its discretion in precluding their argument that this procedure was unnecessary. Appellants argue that if the district court had permitted the jury to hear their argument, the past damages award would have been less and would have created a wider disparity between the past and future damages awarded. The district court recognized that appellants sought to present an argument which misstated Roybal's expert's testimony and that to make this argument, appellants would be required to call their own expert, which they failed to do. See Wickliffe v. Sunrise Hosp., Inc., 104 Nev. 777, 781, 766 P.2d 1322, 1325 (1988) (recognizing evidence presented at trial must support proposed inferences in closing arguments). We agree and conclude the district court did not abuse its discretion in precluding this argument. Therefore, the past and future damages disparity as suggested by appellants is not so wide to suggest the jury issued an award based on passion or prejudice.

Based on the foregoing, we conclude the jury's verdict was not influenced by passion or prejudice. The record contains substantial evidence to support the jury's award and no errors exist to suggest the jury was impassioned to award an excessive amount. Therefore, we hold that the district court did not abuse its discretion in denying appellants’ motion for a new trial.

The district court abused its discretion in awarding attorney fees that included pre-offer work

This court reviews a district court's award of attorney fees under an abuse of discretion standard. Frantz v. Johnson, 116 Nev. 455, 471, 999 P.2d 351, 361 (2000). To the extent an award is challenged based on statutory or contractual interpretation, those are questions of law that we review de novo. Barney v. Mt. Rose Heating & Air Conditioning, 124 Nev. 821, 825, 192 P.3d 730, 733 (2008) (statutory interpretation); Galardi v. Naples Polaris, LLC, 129 Nev. 306, 309, 301 P.3d 364, 366 (2013) (contractual interpretation).

Appellants first argue the district court abused its discretion in awarding attorney fees under NRCP 68 because Roybal's offer of judgment was invalid. Appellants contend Roybal's offer of judgment was ambiguous because it was addressed to Bellomo but then referred to “[d]efendants” throughout the rest of the offer.

This court has recognized that NRCP 68 offers are “likened to contract offers.” Fleischer v. August, 103 Nev. 242, 246, 737 P.2d 518, 521 (1987) (quoting Boorstein v. City of New York, 107 F.R.D. 31, 33 (S.D.N.Y. 1985)). Basic contract interpretation principles require an offer be definite and certain, “so that the parties can be unequivocally aware of what the defendant is willing to pay for his peace.” Stockton Kenworth, Inc. v. Mentzer Detroit Diesel, Inc., 101 Nev. 400, 404, 705 P.2d 145, 148 (1985). Arguably, a plain reading of Roybal's offer leaves a question as to the parties’ intent because the offer was addressed only to Bellomo but referred to “defendants” throughout the rest of the offer. When interpreting a contract “[a] court should ascertain the intention of the parties from the language employed as applied to the subject matter in view of the surrounding circumstances.”¹ Mohr Park Manor, Inc. v. Mohr, 83 Nev. 107, 111, 424 P.2d 101, 105 (1967).

Roybal contends the extrinsic evidence in this case suggests that appellants knew who the offer was for considering Roybal sent the offer to both defendants and the offer referenced both defendants. Additionally, Roybal's counsel testified before the district court that at the time of the offer both defendants were jointly represented by the same firm. Moreover, appellants concede they have a “unity of interest [because they] were being sued on the same core ‘basis of liability.’ ” When considering the context in which the offer was delivered, we conclude the only reasonable reading of the offer is to include both defendants. See Galardi, 129 Nev. at 309, 301 P.3d at 366 (recognizing a finding of ambiguity requires a contract to be reasonably interpreted in more than one way). Therefore, Roybal's offer of judgment was valid.

Alternatively, appellants argue the district court abused its discretion in awarding attorney fees based on Beattie v. Thomas, 99 Nev. 579, 586, 668 P.2d 268, 272-73 (1983), and Brunzell v. Golden Gate National Bank, 85 Nev. 345, 349, 455 P.2d 31, 33 (1969). Under NRCP 68, where an offeree fails to obtain a more favorable outcome following rejection of an offer of judgment, a district court may award attorney fees and, in doing so, must evaluate the factors set forth in Beattie. See Yamaha Motor Co., U.S.A. v. Arnoult, 114 Nev. 233, 251, 955 P.2d 661, 672 (1998). Beattie requires that courts consider:

(1) whether the plaintiff's claim was brought in good faith; (2) whether the ․ offer of judgment was reasonable and in good faith in both its timing and amount; (3) whether the [offeree]’s decision to reject the offer and proceed to trial was grossly unreasonable or in bad faith; and (4) whether the fees sought by the offeror are reasonable and justified in amount.

99 Nev. at 588-89, 668 P.2d at 274. Appellants challenge whether the offer of judgment was reasonable in timing and amount and whether its subsequent rejection was made in bad faith.

We conclude that the district court did not abuse its discretion when it determined that the offer of judgment was reasonable. The offer was reasonable in amount because it contemplated Roybal's past and future medical expenses, attorney fees, and was within insurance policy limits. The offer also was reasonable in timing because Roybal had already disclosed he would require future medical treatment from multiple healthcare providers. Therefore, substantial evidence demonstrates appellants had sufficient information to make an informed decision to accept or reject the offer of judgment. Substantial evidence also demonstrates that the rejection of the offer was made in bad faith because appellants had a relatively weak case and risked a jury awarding future pain and suffering damages at trial, instead of settling within its insurance policy limits. The district court, therefore, did not abuse its discretion as to its findings under the second and third Beattie factors.

The fourth Beattie factor requires courts to consider the reasonableness of the attorney fees and whether they are justified in amount. 99 Nev. at 588-89, 668 P.2d at 274. This fourth Beattie factor is best resolved by considering the factors set out in Brunzell. See Clark, 142 Nev., Adv. Op. 47, 592 P.3d at 429. Appellants challenge the district court's findings under the second and third Brunzell factors. The relevant Brunzell factors for the court to consider are:

(2) the character of the work to be done: its difficulty, its intricacy, its importance, time and skill required, the responsibility imposed and the prominence and character of the parties where they affect the importance of the litigation; (3) the work actually performed by the lawyer: the skill, time and attention given to the work; ․

85 Nev. at 349, 455 P.2d at 33.

In finding that attorney fees awarded were reasonable and justified in amount, the district court applied Capriati Construction Corp. v. Yahyavi, 137 Nev. 675, 498 P.3d 226 (2021), overruled by, Clark, 142 Nev., Adv. Op. 47, 592 P.3d at 434. Capriati expressly held that contingency-fee attorneys may collect the entirety of their fee agreement under NRCP 68 if they satisfy the Beattie and Brunzell factors. 137 Nev. at 680-81, 498 P.3d at 231-32. However, this court overruled Capriati insofar as it held that contingency fees are incurred upon judgment, explaining that “district courts must exclude the work done before the offer in considering a reasonable attorney fee award under NRCP 68.” Clark, 142 Nev., Adv. Op. 47, 592 P.3d at 434. Because the district court's reasonableness finding was based on the totality of the work performed—both pre- and post-offer—we conclude that the district court abused its discretion in awarding $7,923,304.85 in attorney fees under NRCP 68. We therefore reverse the district court's order granting Roybal's motion for attorney fees and remand for further proceedings consistent with the majority opinion in Clark. Accordingly, we

ORDER the judgment of the district court AFFIRMED IN PART AND REVERSED IN PART AND REMAND this matter to the district court for proceedings consistent with this order.

Pickering, J.

Bell, J.

Cadish, J.

Parraguirre, J.

Stiglich, J.

Lee, J.

FOOTNOTES

1.   At appellants’ urging, the district court held an evidentiary hearing to determine the parties’ intent as to the offer of judgment. Roybal asserts that appellants cannot point to the evidentiary hearing itself to prove the offer was ambiguous and invalid when the appellants induced the court to hold the hearing in the first place. We agree.

Herndon, C.J.