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Protecting Your Pocket: When Attorney Fees and Costs are Recoverable on Appeal

Getting saddled with an appeal after you have won a case  can be a bitter pill to swallow.  Continuing to pay an attorney who you thought you were done paying only rubs into the wound.  Here’s how you might be able to recover attorney fees on appeal.

ATTORNEY FEES ON APPEAL ARE ONLY AWARDED FOR “FRIVOLOUS” APPEALS

A Nevada appellate court will only award attorney fees on appeal if:

  • “an appeal has been frivolously taken or processed in a frivolous manner;”
  • The appeal was filed solely to delay; or
  •  a party abuses and misuses the appellate process for some purpose other than resolving an appeal.

NRAP 38(b).  The Nevada Supreme Court can also award monetary sanctions if it finds that an appeal is frivolous. NRAP 38(a).

Awards of attorney fees on appeal under NRAP 38 are rare.  The appellate courts have substantial discretion to award these fees, and they rarely exercise that discretion.  Bd. of Gallery of History, Inc. v. Datecs Corp., 116 Nev. 286, 288 n.2, 994 P.2d 1149, 1150 n.2 (2000).

An appeal is not frivolous merely because the party lost.  See, e.g., Bobby Berosini, Ltd. v. PETA, 114 Nev. 1348, 1356-57, 971 P.2d 383, 388 (1998); Edington v. Edington, 119 Nev. 577, 588, 80 P.3d 1282, 1290 (2003).

NRAP 38 truly comes into play when the opposing party’s conduct has been dishonest, disruptive, and fails to comply with the rules of appellate procedure.

For example, in Varnum v. Grady, the Nevada Supreme Court imposed monetary sanctions because the appellant failed to abide by five procedural requirements relating to transcripts, record designation and filing fees.  90 Nev. 374, 375-77, 528 P.2d 1027, 1028 (1974).  After the respondent moved to dismiss the appeal, the appellant argued that its counsel should be excused for not following the rules because he was involved in a trial and working on other briefs.  Id.  Needless to say, the Nevada Supreme Court completely rejected the argument, refused to accept counsel’s preoccupation with other cases as a valid excuse, and found that the appellant’s prosecution of its appeal was dilatory and warranted monetary sanctions.  Id.

Sanctions can also be issued against respondents.  In Sobol v. Capital Management Consultants, Inc., the Nevada Supreme Court issued sanctions against the respondent because of its “blatant misrepresentation of the stipulated facts” in its brief, and because it quoted language from a dissent in a case as if it were “the holding of the case.”  102 Nev. 444, 446-47, 726 P.2d 335, 337 (1986).  The Nevada Supreme Court not-so-gently reminded the respondent that it “expect[s] and require[s] that all appeals . . . will be pursued in a manner meeting high standards of diligence, professionalism, and competence.”  Id. (Internal quotations omitted).

The Nevada Supreme Court has also made it clear that a voluntarily dismissed appeal is not automatically “frivolous” so as to warrant an award of attorney fees.  Breeden v. Eighth Judicial Dist. Ct., 131 Nev., Adv. Op. 12, 343 P.3d 1242, 1243 (Nev. 2015).  In Breeden, the Nevada Supreme Court rejected the argument that fees should be awarded under NRCP 42(b) and NRAP 38 for voluntary dismissal of appeals because “courts encourage rather than discourage voluntary, self-determined case resolutions.”  Id.

COSTS ON APPEAL ARE A DIFFERENT STORY

Unlike attorney fees, costs are frequently recoverable on appeal under NRAP 39.

How an appeal is resolved determines who has to pay the costs.  Here’s how Rule 39 works:

  • If the appeal is dismissed, the appellant has to pay the costs unless the parties agree otherwise.
  • If the judgment is affirmed, the appellant has to pay the costs (because they lost).
  • If the judgment is reversed, the respondent has to pay the costs (because they lost).
  • If the judgment is affirmed in part and reversed in part, then costs are only recoverable if the appellate court orders (because everybody won but also lost).

NRAP 39(a).

The costs that you can recover include:

  • Costs of copying for “necessary” copies of briefs and appendixes
  • Costs of roundtrip transportation for oral argument. These are limited to the distance between the district court and the appellate court (i.e., your New York lawyer can’t charge for flying from New York to Vegas).  The costs are further limited to 15 cents per automobile mile or the cost of commercial airfare, whichever is lowest.
  • Preparation and transmission of the record
  • Reporter’s transcript
  • Preparation of appendix
  • Premiums paid for supersedeas or other bonds filed upon appeal
  • The filing fee for the appeal

NRAP 39(c), (e). Costs for copies and transportation are capped at $500.  NRAP 39(c)(5).  For estimation of other appeal costs, read this post.

To recover these costs, you must file an itemized and verified bill of costs with the appellate court within 14 days after the order or opinion is issued.  NRAP 39(c)(3).    The costs are actually awarded in the remittitur.  NRAP 39(d).  If remittitur issues before costs are determined, then the district court adds the statement of costs to the remittitur.  Id. And if you have no clue what “remittitur” is, read this post.

DON’T FORGET OFFERS OF JUDGMENT

If you had fees awarded pursuant to an offer of judgment in the district court, you may be able to recover fees incurred upon appeal under that same offer of judgment.   NRCP 68 “extend[s] to fees incurred on and after appeal.”  In re Estate & Living Tr. of Miller, 125 Nev. 550, 555, 216 P.3d 239, 243 (2009).  Keep in mind, however, that the appellate court’s ruling regarding the offer of judgment on appeal will govern whether you can recover fees because the appellate court’s ruling is the law of the case.  Bd. of Gallery of History, Inc., 116 Nev. at 289, 994 P.2d at 1150.  This means that an order or opinion affirming the award under the offer of judgment only leaves the question of whether your fees incurred on appeal were reasonable.  Likewise, an order reversing the judgment may result in a finding that your offer was unreasonable, and you are not entitled to any fees.