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Paying for the Other Guy: How to Appeal Attorney Fee Awards

Losing hurts, and it hurts even worse when you get saddled with the other guy’s attorney’s bill.  Here’s how and when you can appeal attorney fee awards.

APPEALING INTERLOCUTORY AWARDS

If the lower court awards the other side attorney fees before entry of a final judgment, the order is interlocutory.  This means it cannot be appealed until the entry of a final judgment in the case.  See Allen v. Nelson, 126 Nev. 688, 367 P.3d 744 (2010) (dismissing an appeal of an interlocutory award of attorney fees, taken prior to entry of a final judgment).  To determine when a judgment is considered final, please read this.

Once a final judgment has been entered, the attorney fee award can be contested on appeal along with any other issues.

ATTORNEY FEE AWARDS AFTER JUDGMENT

Attorney fee awards after entry of a final judgment are independently appealable as a “special order after judgment.”  NRAP 3A(b)(8); see also Lytle v. Rosemere Estates Prop. Owners, 129 Nev. 923, 925-26, 314 P.3d 946, 948 (2013).  This means that appeals from these awards must be filed within thirty (30) days of the notice of entry of order awarding attorney fees.  Winston Prods. Co. v. DeBoer, 122 Nev. 517, 525, 134 P.3d 726, 731 (2006).

Like final judgments, the time period to file these appeals can be tolled by a “tolling motion” filed under NRAP 4.  A “tolling motion” includes motions for reconsideration of the attorney fee award.  Id.

AMENDED NOTICES OF APPEAL, AMENDED JUDGMENTS, AND SEPARATE APPEALS

If you receive a final judgment while a motion for attorney fees is still pending, that motion for fees does not toll your time to file an appeal of the final judgment.  You must file within thirty (30) days.

What happens if you appeal a final judgment, only to be hit later with an attorney fee award that you also want to appeal?  It depends on what the district court does.

If the district court amends the final judgment you have already appealed, you must file an amended notice of appeal noting the amended judgment.  But, if the district court simply enters an order awarding attorney fees, or enters a separate judgment, you must file a separate appeal of these awards.  Campos-Garcia v. Johnson, 130 Nev. 610, 611-12, 331 P.3d 890, 891 (2014).  You will be asked to notify the Court of related appeals in both the case appeal statement and the docketing statement, and the Supreme Court Clerk will consolidate these appeals.

DENIAL OF ATTORNEY FEE MOTIONS

The flip side of this coin are those aggrieved by a district court’s denial of a motion for attorney fees.  The rules set forth above generally apply.  If a final judgment has not been entered, you cannot appeal the order denying your request until a final judgment is entered. If you are the respondent, you can file a cross-appeal after final judgment to address the denial of your fees.  If you are the appellant, you simply take the issue up with your other issues on appeal.

If the order is entered after a final judgment, you must file a separate notice of appeal unless you can timely file a cross-appeal.

At the end of the day, you have to pay a lawyer if you want to litigate.  Hopefully, the lawyer you pay is your own.

When Two Do Not Become One: Appealability of Judgments in Consolidated Cases

In Hall v. Hall, the United States Supreme Court (SCOTUS) answered the burning question that … okay, that probably no one has been dying to have answered.  But nevertheless, it is good to know for appellate practice.  When you consolidate cases under Rule 42, can you separately appeal a judgment obtained in one case even if a final judgment has not been entered in the other consolidated case?  According to SCOTUS, yes.  Hall v. Hall,  584 U.S. ___, 138 S. Ct. 1118, 200 L.Ed.2d 399 (Mar. 27, 2018).

CONSOLIDATION IS NOT UNIFICATION

When you have two similar cases, you can move the court to consolidate them under Rule 42.  When cases are “consolidated,” they are heard by the same judge.  They may also be tried at the same trial.

Consolidation has been around since before Abraham Lincoln was a twinkle in his mother’s eye.  In 1813, Congress passed a statute allowing courts to consolidate related actions. § 3, 3 Stat. 21.  Under this statute, SCOTUS consistently refused to recognize “consolidated” cases as being “unified” for all purposes.

For example, in Rich v. Lambert, SCOTUS declined to exercise jurisdiction over several consolidated maritime appeals because each case did not individually involve at least $2,000 in damages, and (at that time) SCOTUS only had jurisdiction over maritime cases where the amount in issue was in excess of $2,000.  12 How. 347, 352-53, 13 L.Ed. 1017 (1852).

In Mutual Life Insurance Co. v. Hillmon, SCOTUS reversed a court order treating three separate lawsuits against three separate defendants as one merely because the three separate lawsuits against each defendant were consolidated.  145 U.S. 285, 293, 12 S. Ct. 909, 36 L.Ed. 706 (1892).  Poor Mrs. Hillmon had to file three separate lawsuits against three separate life insurance companies for release of three separate life insurance policies on her husband who she claimed had died while traveling through southern Kansas.  Id. at 285-87.  The insurance companies claimed it was insurance fraud, that Mr. Hillmon was still alive, that he had conspired with his traveling companion to murder their other traveling companion, and that they were trying to pass off that poor schmuck’s corpse as Mr. Hillmon.  Id.  The cases were consolidated.  At trial, when the individual insurance companies each tried to challenge potential jurors for jury duty disqualification, the court limited their challenges to the amount normally allowed in one case rather than allow them to have the amount allowed in three cases.  Id.  According to SCOTUS, the fact that the cases were consolidated did not negate the individual defendants’ rights to have the full amount of peremptory (i.e., juror) challenges available to them in their separate lawsuits.  Id.  at 293.

(I don’t know if Mr. Hillmon was actually alive at the time of trial, but he is definitely dead now.)

In Stone v. United States, SCOTUS did not allow the appealing party to raise issues on appeal that were related to a consolidated case whose judgment he had not also appealed.  167 U.S. 178, 189, 17 S. Ct. 778, 42 L.Ed. 127 (1897).

In Johnson v. Manhattan R. Co., SCOTUS affirmed Judge Learned Hand’s decision that consolidation does not automatically make the parties to one lawsuit also parties to the consolidated lawsuit.  289 U.S. 479, 496-497, 53 S. Ct. 721, 77 L.Ed. 1331 (1933).

In 1935, Rule 42(a) was adopted, and expressly allowed for consolidation of cases raising similar facts, issues and/or containing similar parties.

Following the adoption of Rule 42(a), SCOTUS continued to reject the theory that “consolidation” means “unification.”  In Butler v. Dexter, SCOTUS dismissed an appeal because the constitutional question that gave SCOTUS jurisdiction was not raised in the appealed case, but in the other consolidated cases which were not appealed.  425 U.S. 262, 266-67, 96 S. Ct. 1527, 47 L.Ed.2d 774 (1976).

ALONG COMES THE HALLS

One very important thing you should know about the above opinions is that SCOTUS never stated outright “Yes, you can separately appeal cases even if they have been consolidated under Rule 42.”  Apparently, you really have to spell these things out for lawyers.

Which brings us to the case of poor Samuel Hall (coincidentally, a lawyer).  Samuel does not like his sister Elsa, and the feeling is mutual.  Samuel used to take care of his mother, until she got mad at something Samuel did with her real estate.  Hall, 138 S. Ct. at 1122.  His mother then created a trust, transferred all of her property into it, made herself trustee, and made Elsa the beneficiary of the property upon her death.  Id. The mother also moved to live with Elsa and the move, according to SCOTUS was “under circumstances disputed by the parties.”  Id.

(I don’t know what that means, but it screams “kidnapped and transported in a container ship.”  The mom lived in the Virgin Islands with Samuel, and relocated to Miami with Elsa).

The mom eventually sued Samuel and his law firm on behalf of her trust for whatever it is that Samuel allegedly did to her real estate. Id.  The mom died, and Elsa became the trustee tasked with prosecuting the lawsuit against Samuel.  Id.  Samuel then filed a separate lawsuit against Elsa for whatever it is that she allegedly did to their mom.  Id. at 1123.  The cases were consolidated, and tried in one trial.  Id.

Elsa lost.  She lost the trust case, and Samuel won on his claims against her in the individual case.  Id.  Elsa was able to overturn the jury verdict in the trust case, reopening the litigation.   Id.  However, the jury verdict against Elsa in the individual case stood, and Elsa appealed that verdict.  Id.  Samuel argued that the verdict in the individual case was not a final appealable judgment because the claims in the trust case remained pending. Id.  The Third Circuit Court of Appeals agreed.  Id.  SCOTUS did not.

According to SCOTUS, “[h]ad the District Court never consolidated the trust and individual cases, there would be no question that Elsa could immediately appeal from the judgment in the trust case.”  Id.  Relying on its  history of viewing consolidated cases as retaining their separate identity, SCOTUS rejected Samuel’s argument and reversed the Third Circuit.  It finally stated, clear enough for lawyers to understand, “that when one of several consolidated cases is finally decided, a disappointed litigant is free to seek review of that decision in the court of appeals.”  Id. at 1131.

And everybody lived happily ever after.  Except for the Halls, who are probably still suing each other, and also Mr. Hillmon, who is definitely now dead.

Wait, Writ What? A Crash Course in Appellate Writs

A writ petition is, basically, an early appeal.  Attorneys love to file writ petitions while the case is still going because, in their mind, they don’t have to wait until the bitter end to prove the judge wrong.  Unfortunately, you cannot take anything and everything up on a writ.   Understanding how and when writ relief is appropriate will save you time and your clients money.

WHO CAN FILE A WRIT PETITION

Any party to the proceeding can file a writ petition.  Writ relief is also available to non-parties.  Only parties to the litigation have the right to appeal.  See NRAP 3A.  Thus, writ relief is the only avenue of appellate review for non-parties aggrieved by orders.

Writ relief is the only appellate remedy for attorneys who wish to challenge (1) orders disqualifying counsel, Nev. Yellow Cab Corp. v. Eighth Jud. Dist. Ct., 123 Nev. 44, 49, 152 P.3d 737, 740 (2007), and (2) orders issuing sanctions. Watson Rounds v. Eight Jud. Dist. Ct., 131 Nev., Adv. Op. 79, 358 P.3d 228, 231 (Nev. 2015).  Although they represent parties, an attorney is not a “party” to the litigation who can appeal these orders.  Emerson v. Eighth Judicial Dist. Ct., 127 Nev. 672, 676, 263 P.3d 224, 227 (2011).

Writ relief is also the appropriate remedy for disqualification or peremptory challenges to judges.  See Ivey v. Dist. Ct., 129 Nev. 154, 159, 299 P.3d 354, 357 (2013); Morrow v. Dist. Ct., 129 Nev. 110, 112, 294 P.3d 411, 413 (2013).

For other non-parties, writ relief is the appropriate appellate remedy for orders compelling non-party witnesses to appear and/or participate at trial or in discovery, Quinn v. Eighth Jud. Dist. Ct., 134 Nev., Adv. Op. 5, 410 P.3d 984, 987 (Nev. 2018), and denial of a motion to intervene.  Hairr v. First Jud. Dist. Ct., 132 Nev., Adv. Op. 16, 368 P.3d 1198, 1200 (Nev. 2016).

WHAT TYPE OF WRIT PETITION YOU SHOULD FILE.   

There are two main types of writ petitions available to civil practitioners:  (1) mandamus; and (2) prohibition.  A writ of mandamus is used to order the district court judge to do something.  Aspen Fin. Servs., Inc. v. Eighth Jud. Dist. Ct., 129 Nev. 878, 881, 313 P.3d 875, 877 (2013); see also NRS 34.160.   In contrast to mandamus, a writ of prohibition seeks to prevent the district court from doing something.   Sandpointe Apartments v. Eighth Jud. Dist. Ct., 129 Nev. 813, 817, 313 P.3d 849, 852 (2013); see also NRS 34.320.

You should file a writ of mandamus for the following:

(1)  Challenges to the district court’s discretion in imposing sanctions on a party.  City of Sparks v. Second Judicial Dist. Ct., 112 Nev. 952, 953 n.1, 920 P.2d 1014, 1015 n.1 (1996)

(2)  Issues of law that need clarification (from any form of order – dismissal, summary judgment, etc.).  Paley v. Second Judicial Dist. Ct., 129 Nev. 701, 703, 310 P.3d 590, 592 (2013).

(3) A district court’s refusal to exercise jurisdiction over a party, or the subject matter of the litigation.  Amezcua v. Eighth Judicial Dist. Court of State ex rel. Cnty. of Clark, 130 Nev., Adv. Op. 7, 319 P.3d 602, 603 (2014); State, Through Miller v. Eighth Judicial Dist. Court In & For Clark Cnty., 97 Nev. 34, 35, 623 P.2d 976 (1981).  Mandamus is particularly appropriate for orders quashing service of process.  Jarstad v. Nat’l Farmers Union Prop. & Cas. Co., 92 Nev. 380, 383-84, 552 P.2d 49, 51 (1976).

You should file a writ of prohibition for the following

(1)  Orders requiring improper discovery. Quinn, 134 Nev. at ___, 410 P.3d at 987 (Nev. 2018).  Writs of prohibition are the favored procedural vehicle “to correct an order that compels disclosure of privileged information.”  Wynn Resorts, Ltd. v. Eighth Jud. Dist. Ct., 399 P.3d 334, 341 (Nev. 2017).

(2) Orders denying motions to quash service of process, or involving the exercise of jurisdiction which the district court lacks. Grupo Famsa v. Eighth Jud. Dist. Ct., 132 Nev., Adv. Op. 29, 371 P.3d 1048, 1050 (Nev. 2016).

WHEN YOU SHOULD FILE YOUR PETITION. 

A writ petition can be filed at any time, and there is no specific time by which one must be filed.  See NRAP 21.  This does not, however, mean that you can sit on your writ forever.  “Writ relief is subject to laches.”  State v. Eighth Judicial Dist. Ct. (Anzalone), 118 Nev. 140, 147-48, 42 P.3d 233, 238 (2002).  Laches bars writ relief if (1) “there was an inexcusable delay in seeking the petition,” (2) “an implied waiver arose from the petitioner’s knowing acquiescence in existing conditions,” and (3) the delay prejudiced the respondent.  Id. at 148, 42 P.3d at 238. A petitioner who is aware of their right to bring a writ petition and who offers no convincing explanation for their delay in doing so has inexcusably delayed seeking writ relief.  Bldg. & Constr. Trades Council of N. Nev. v. State, 108 Nev. 605, 611, 836 P.2d 633, 637 (1992).

WHERE YOU FILE YOUR PETITION. 

All writ petitions are initially filed with the Nevada Supreme Court.  See NRAP 21.  The petition can be heard by either the Nevada Supreme Court or the Nevada Court of Appeals.  You must include an NRAP 17 statement in the petition that identifies the court to which the issues should be directed.

WHY YOUR WRIT PETITION MAY BE GRANTED OR DENIED.

Writ relief is not a guarantee.  Writ relief is viewed as an “extraordinary remedy” that is only available if your alleged injury cannot be rectified by a subsequent appeal.  See NRS 34.170; NRS 34.330; see also Aspen Fin. Servs., Inc., 313 P.3d at 877-78.  90% of the time, your writ petition will be denied because you can eventually appeal from the order of which you now complain.

Occasionally, however, the appellate courts will agree to hear a writ petition even if the issue can be resolved in a later appeal.  The Nevada Supreme Court is particularly likely to consider the writ if you can demonstrate that resolution of the issues will promote judicial economy, clarify the law, and/or eliminate other, related litigation.  Yellow Cab of Reno, Inc. v. Second Judicial Dist. Court of State ex rel. Cnty. of Washoe, 127 Nev. 583, 589, 262 P.3d 699, 703 (2011); Williams v. Eight Judicial Dist. Court of State, ex rel. Cnty. of Clark, 127 Nev. 518, 525, 262 P.3d 360, 365 (2011).

These instances are rare.  Unless your issue falls into one of the topic areas listed above, it may be worth saving your time and your client’s money to wait for the appeal.

HOW YOUR WRIT PETITION SHOULD LOOK.  

When you file a writ petition you are the “petitioner,” the district court judge is the “respondent” and your opposing party is the “real party in interest.”  NRAP 21(a)(1).  Your caption should identify the parties in that manner. You have to serve the petition on the district court and your opposing party, as well as a file a notice of writ petition with the district court.  As with appeals, the district court has discretion whether to stay the litigation pending resolution of the writ proceeding.

Your writ petition must set forth: (1) the relief you are seeking, (2) the issues you want decided, (3) the facts necessary for the appellate court to understand the issues, and (4) legal argument as to why the appellate court should grant your writ.  NRAP 21(a)(3).  Writ petitions must be verified, i.e., signed under oath.  NRAP 21(a)(4).  And you should probably include some argument as to why your issue is appropriate for writ relief.

Unlike an appeal, the opposing party may not get a chance to respond.  The appellate court can deny your writ petition without an answer.  NRAP 21(b)(1).  If it determines that an answer is warranted, the appellate court will order the real party in interest, and sometimes the judge, to respond.  NRAP 21(b)(1); NRAP 21(b)(4).  Once the real party in interest responds, you may be asked for a reply, or the court may simply take the writ under consideration.

Writ petitions have to comply with the same formatting requirements as appeal briefs.  NRAP 21(d).  You also have to submit an appendix which complies with Rule 30.  NRAP 21(a)(4).

SO, WILL YOU FILE? 

My rule of thumb regarding writs is only to file if necessary.  Sometimes your client will believe it is necessary against your advice.  Sometimes, you will believe it is necessary only to have the Supreme Court dismiss your petition.  But it is important to know that writ petitions are not simply an appeal on steroids.  You are not automatically granted the right to interlocutory appellate review.