Bustamante v. Martin: Scrivener’s Errors in NRCP 68 Offers Do Not Defeat Fee-Shifting When the Intended Offeree Is Clear on the Face; Prejudgment Interest Must Be Excluded from Contingency-Fee Calculations

1) Introduction

Parties: Jonathan Bustamante (appellant/defendant) and Marvin Osvaldo Martin (respondent/plaintiff). Forum: Supreme Court of Nevada reviewing an attorney-fee award from the Eighth Judicial District Court, Clark County (Judge Anna C. Albertson).

The underlying case arose from a head-on car crash. The appellate dispute centers on Nevada’s offer-of-judgment regime under NRCP 68: Bustamante made a $25,000 pretrial offer; Martin countered with a $100,000 offer of judgment. Martin’s written offer contained a drafting mistake—two nonparties (Jeffrey and Herminia Razon) appeared in the offer’s body—though the caption, case number, and the first line of the offer identified Bustamante as the offeree and Bustamante was the only defendant.

After Bustamante rejected the $100,000 offer, the case went to trial and Martin obtained a money judgment consisting of: $130,000 past pain and suffering, $100,000 future pain and suffering, and $42,066.67 medical specials. The district court also awarded $57,055.42 in prejudgment interest, bringing the total to $329,122.09.

Martin sought attorney fees under NRCP 68(f). He had a 40% contingency-fee agreement, and the district court awarded $131,648.84—40% of the total judgment including prejudgment interest. Bustamante appealed, challenging (i) the validity of the offer and (ii) the reasonableness/analysis supporting the fee award, and (iii) the inclusion of prejudgment interest in the contingency-fee base.

2) Summary of the Opinion

Majority disposition (order)

• Offer validity affirmed: The Supreme Court agreed the $100,000 offer was valid notwithstanding the mistaken reference to nonparties, treating it as an obvious scrivener’s error where the offer was plainly directed to Bustamante on its face.
• Reasonableness/analysis affirmed: The Court held the district court did not abuse its discretion in awarding post-offer fees consistent with the 40% contingency agreement; explicit written findings on each Beattie and Brunzell factor were “preferable” but not required where the record shows the court addressed them.
• Prejudgment interest component reversed: The Court reversed the portion of the award that effectively included 40% of the $57,055.42 prejudgment interest in the fee calculation, treating Martin’s non-response as a concession.
• Result: Affirmed in part, reversed in part, and remanded to recalculate fees excluding prejudgment interest from the contingency-fee base.

Dissent (PICKERING, J., with whom STIGLICH, J. agrees)

The dissent would have deemed the offer defective and therefore unenforceable for NRCP 68 fee-shifting, emphasizing that Rule 68 is penal and derogates the common law, and thus should be narrowly construed and strictly compliant with formal requirements. The dissent also criticized reliance on attorney discussions as extrinsic evidence to cure a rejected offer’s defects.

3) Analysis

A. Precedents Cited

1. Standard of review and framing

• Gunderson v. D.R. Horton, Inc.: Cited for the proposition that when an attorney-fee decision implicates a question of law, review is de novo. Here, it supported appellate scrutiny of whether Martin’s offer satisfied NRCP 68’s formal validity requirements.
• Valley Health Sys., LLC v. Murray: Cited for abuse-of-discretion review of a district court’s attorney-fee award. This anchored the Court’s deferential posture on the fee amount once entitlement and governing legal standards were satisfied.

2. NRCP 68 formal requirements and “sum certain / unconditional” principles

• Quinlan v. Camden USA, Inc.: The majority relied on Quinlan’s articulation that NRCP 68’s fee-shifting departs from the common law and therefore is subject to “formal requirements aimed at predictability and fairness,” including that the offer be “unconditional and for a sum certain.” Importantly, Quinlan is also the dissent’s principal authority for strict compliance, highlighting a core tension: how strictly “formal requirements” should be enforced when a mistake is plainly clerical.

3. Scrivener’s error doctrine and correcting obvious clerical mistakes

• 27 Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts § 70:93: Quoted for the definition of scrivener’s error—when the parties share identical intention but the writing fails to express it due to transcription-type error.
• Sinha v. Bradley Univ.: Cited (as persuasive authority) for distinguishing transcription/clerical errors from legal-judgment errors; courts may correct the former.
• Desert Valley Contracting, Inc. v. In-Lo Props.: Used to reinforce that an “obvious scrivener’s error” need not create ambiguity—especially where a strict literal reading produces a nonsensical result.

4. Beattie and Brunzell factor analyses (entitlement and reasonableness)

• Beattie v. Thomas: Supplies the factors for deciding whether to award fees based on an offer of judgment (the “Beattie factors”). The Court accepted that the district court addressed these factors at the hearing even though the written order did not expressly walk through each one.
• Brunzell v. Golden Gate Nat. Bank: Provides the traditional factors for assessing reasonableness of requested attorney fees (“Brunzell factors”).
• Schwartz v. Est. of Greenspun: Cited (majority) for the proposition that express findings on each Beattie factor, while preferable, are not always necessary. Cited (dissent) for Rule 68’s policy objective—encouraging early resolution rather than generating protracted post-judgment litigation over fees.
• Logan v. Abe: Cited (majority) to similar effect for Brunzell—express findings are preferable but not mandatory if the record supports the court’s exercise of discretion; also cited for appellate restraint absent arbitrary/capricious decisionmaking.

5. Contingency fees as NRCP 68 post-offer fees

• Capriati Constr. Corp. v. Yahyavi: Central to the fee-amount analysis; it “clarif[ies] that a district court may award the entire contingency fee as post-offer attorney fees under NRCP 68.” This precedent underwrote affirmance of the 40% approach (subject to the prejudgment-interest correction on remand).

6. Concession/waiver and the prejudgment interest correction

• Ozawa v. Vision Airlines, Inc.: Cited for the principle that a party’s failure to substantively dispute an argument may be treated as a confession of error/merit. The Court applied Ozawa to treat Martin’s lack of meaningful opposition as conceding that prejudgment interest should not be included in the contingency-fee base.

7. Dissent’s strict-construction authorities

• Albios v. Horizon Cmtys., Inc.: Cited for Rule 68’s penalty nature and for narrow construction, emphasizing that fee-shifting is an exception to the American rule.
• Coleman v. State: Invoked for the general principle that laws imposing penalties or derogating common law are narrowly construed.
• Khan v. Bakhsh: Cited regarding extrinsic evidence in contract interpretation; the dissent distinguished that posture from interpreting a rejected offer of judgment for penalty purposes.
• Mendenhall v. Tassinari: Cited for construing ambiguous offers against the offeror.
• Allen v. City of Grovetown: Cited (persuasively) for the proposition that extrinsic evidence should not expand the meaning of a rejected offer.

B. Legal Reasoning

1. Validity of an offer of judgment containing a misnomer/nonparty reference

The majority’s core move is to treat the mistaken inclusion of the Razons as a scrivener’s error that does not undermine the offer’s validity when the offer’s face makes the intended offeree unmistakable: the caption named Bustamante, the case number matched, the first line said the offer was made to Bustamante, and Bustamante was the only defendant. On those facts, the majority concluded the offer remained “unconditional” and for a “sum certain” under Quinlan v. Camden USA, Inc.

The dissent would require stricter adherence to “proper form,” arguing that once the offer expires (is “rejected” under NRCP 68(e)), courts should not salvage defects by resort to contextual understanding or attorney discussions, because Rule 68 imposes a penalty and must be narrowly construed. In the dissent’s view, the majority’s approach dilutes Quinlan’s predictability-and-fairness rationale and invites more litigation over whether an error is “obvious.”

2. Fee entitlement and the sufficiency of Beattie/Brunzell analysis

Bustamante argued the district court failed to articulate the Beattie and Brunzell factors. The majority acknowledged that express findings are “preferable,” but held they are not always required where the record demonstrates the court addressed the relevant factors—here, the court did so during the hearing. Under Valley Health Sys., LLC v. Murray and Logan v. Abe, the Court declined to disturb the award as the exercise of discretion was supported by substantial evidence and not arbitrary or capricious.

3. Contingency fees—what base amount may be used?

Relying on Capriati Constr. Corp. v. Yahyavi, the majority approved the district court’s decision to use the contingency agreement to set the fee award (i.e., the court may award the entire contingency fee as post-offer fees). However, the Court reversed the portion of the award calculated on prejudgment interest, not by developing a detailed doctrinal rule in this order, but because Martin effectively conceded the point by failing to meaningfully dispute it under Ozawa v. Vision Airlines, Inc.

C. Impact

1. Practical drafting/interpretation of NRCP 68 offers

The decision signals that Nevada courts may treat obvious clerical misidentification in an NRCP 68 offer (e.g., stray nonparty names) as non-fatal where the offer is otherwise facially clear as to the intended offeree and remains a definite, unconditional “sum certain.” This reduces the risk that fee-shifting turns on hypertechnical mistakes, but it may also generate satellite litigation over whether a given defect is “obvious” or creates real ambiguity—precisely the concern raised by the dissent.

2. Fee orders and record-building

The Court reinforced that written orders need not mechanically recite each Beattie/Brunzell factor if the hearing record shows the court considered them. For litigants, this elevates the importance of making a clear hearing record: factor-by-factor argument, evidentiary support, and explicit rulings.

3. Prejudgment interest and contingency-fee calculations under NRCP 68

The remand confirms that fee calculations tied to a contingency percentage should not automatically treat prejudgment interest as part of the base amount—at least where the respondent does not defend that inclusion and the issue is preserved on appeal. Future litigants should expect challenges to fee bases that include add-ons (interest and possibly other non-damages components) unless clearly authorized or justified.

4) Complex Concepts Simplified

• NRCP 68 (Offer of Judgment): A procedural tool allowing one side to propose a fixed-dollar judgment to end the case. If the other side rejects and later does worse at trial, the rejecting party may face fee/cost shifting (a “penalty” feature).
• “Unconditional” and “sum certain”: The offer must be clear—no contingencies, and the amount must be definite—so parties can rationally compare the offer against litigation risk.
• Scrivener’s error: A clerical drafting mistake (misnaming someone, transposing numbers) that does not reflect a different deal—i.e., everyone intended the same thing, but the writing contains a typo.
• Beattie factors: Factors guiding whether to award fees based on an offer of judgment (e.g., good faith, reasonableness of positions and settlement efforts, and the relationship between offer and result).
• Brunzell factors: Factors guiding how much in fees is reasonable (e.g., qualities of counsel, work performed, complexity, and results obtained).
• Prejudgment interest: Interest added to compensate for the time between injury/claim accrual and judgment; it is not itself “damages found by the jury” but an additional monetary component added by the court.
• Contingency fee: Attorney compensation set as a percentage of recovery; the question here was what components of a “judgment” can be included in the base on which the percentage is applied.

5) Conclusion

BUSTAMANTE v. MARTIN affirms that an NRCP 68 offer of judgment is not invalidated by an obvious clerical reference to nonparties when the offer, on its face, unmistakably identifies the intended offeree and proposes an unconditional, sum-certain resolution. It also underscores that district courts may award contingency-based fees under NRCP 68 consistent with Capriati Constr. Corp. v. Yahyavi, and that express written Beattie/Brunzell findings are not invariably required if the record shows the factors were addressed. Finally, the Court required recalculation to exclude prejudgment interest from the contingency-fee base, reversing that portion of the fee award and remanding for correction.