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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.

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.

 

 

Zenor v. NDOT: Zero Attorney Fees for Zenor

In Zenor v. NDOT, the Nevada Supreme Court ruled that attorney fees are not recoverable under NRS 18.010(2)(b) in petitions for judicial review.  134 Nev., Adv. Op. 14, 412 P.3d 28 (2018).  Here’s what you need to know to understand everything I just said.

How Lawyers Get Paid

There are many ways that lawyers can get paid by their own clients, but only a few ways in which lawyers can get their fees paid by the opposing party.   A district court can order a party to pay their opponent’s attorney fees only if (1) there is a contract between the parties which awards attorney fees to the prevailing party, (2) there is a rule authorizing it, or (3) a statute awards attorney fees.  State, Dep’t Human Resources v. Fowler, 109 Nev. 782, 784, 858 P.2d 375, 376 (1993).

NRS 18.010(2)(b) is the most common statute that attorneys move under to get fee awards.  Under NRS 18.010(2)(b), an attorney can seek their fees if the matter was filed or defended in “bad faith” by the opposing party.  NRS 18.010(2)(b) applies to most litigation.  The question that the Nevada Supreme Court recently determined in Zenor was whether NRS 18.010(2)(b) applies to petitions for judicial review of agency determinations.

Petitions for Judicial Review

You have probably encountered an administrative agency.  Administrative agencies consist of workers compensation boards, licensing boards, taxing authorities, etc. They are not courts, but they still have the power to determine your rights within their respective area of authority.

Final decisions of administrative agencies are reviewable by the district courts.  NRS 233B.130(1).   Aggrieved parties must file a petition for judicial review with the district court, and the district court will review the record to determine if the agency was incorrect.  NRS 233B.130(1); NRS 233B.135.

What happens when part of your petition for judicial review includes the allegation that the opposing party initiated administrative agency proceedings in bad faith? Can you get your attorney fees?  According to the Nevada Supreme Court, the answer is no.

Zenor

In Zenor, Zenor filed a motion for attorney fees under NRS 18.010(2)(b) because he believed the Nevada Department of Transportation (“NDOT”) unreasonably filed a petition for judicial review.  NDOT began an administrative proceeding against Zenor for an injury which Zenor contended did not prevent him from performing his job.  NDOT ultimately was able to terminate Zenor for the “medical” reason.  Zenor appealed, and the administrative hearing officer reversed NDOT’s termination.  NDOT then filed a petition for judicial review, and lost.  Zenor wanted his attorney fees, but the district court refused to award him them under NRS 18.010(2)(b) because it did not believe that attorney fees are recoverable under that statute in administrative agency review proceedings.  412 P.3d at 29.

The Nevada Supreme Court held that the district court was correct.  NRS 233B.130(6) states that it is the “exclusive means of judicial review, or judicial action concerning, a final decision” in an administrative agency case.  NRS Chapter 233B does not contain a statute authorizing the award of attorney fees.   Zenor, 412 P.3d at 29-30.

Statutes are created by the Legislature, not the courts.  The Nevada Supreme Court has consistently refused to encroach on the Legislature’s role by adding things to statutes that the Legislature has omitted.  If the Legislature wanted attorney fees to be awarded, it would have either included a provision for that.   Instead, it stated that the chapter was the “exclusive” means by which petitions for review can be conducted.  NRS 18.010(2)(b) is not within Chapter 233B.  Therefore, attorney fees are not available under NRS 18.010(2)(b) for petitions for judicial review filed under NRS 233B.130.  Zenor, 412 P.3d at 30.