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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.

FINAL SCHMINAL: WHAT CAN YOU REALLY APPEAL?

There are two inevitable truths to litigation:  Sometimes you lose, and losing sucks.  Fortunately, you can appeal.  Unfortunately, you usually have to wait until the bitter end of the case because of the Final Judgment Rule.

WHAT IS THE FINAL JUDGMENT RULE?

Before you can take an appeal, you must have a “final judgment.”  NRAP 3A(b)(1).  A “final judgment” is a judgment that resolves all claims and rights in the litigation, and leaves nothing for the lower court to consider except for non-substantive “post-judgment issues” like attorney fee awards.  Simmons Self-Storage Partners, LLC v. Rib Roof, Inc., 127 Nev. 86, 87, 247 P.3d 1107, 1108 (2011).

The final judgment rule exists to avoid “piecemeal litigation,” by having the lower court decide all of the issues in one case before the appellate court can re-examine those rulings.  Barbara Ann Hollier Tr. v. Shack, 131 Nev., Adv. Op. 59, 356 P.3d 1085, 1090 (2015).  It also prevents our already over-taxed appellate courts from an increasingly heavier caseload.  Archon Corp. v. Eighth Jud. Dist. Ct., 133 Nev., Adv. Op. 1010, 407 P.3d 702, 709 (Nev. 2017).  Finally, it actually makes litigation more efficient, since you cannot constantly appeal everything and endlessly delay the underlying case.  Musso v. Triplett, 78 Nev. 355, 358, 372 P.2d 687, 689 (1962).

HOW DO I KNOW IF MY JUDGMENT IS FINAL?

As noted above, a final judgment will resolve all substantive claims and issues.  Simmons, 127 Nev. at 87, 247 P.3d at 1108.  This means that liability and damages have been awarded or denied on all claims.  As long as all substantive claims and issues are resolved, it does not matter whether the lower court actually called its order a “judgment,” or an “order.”  You can appeal it.  Lee v. GNLV Corp., 116 Nev. 424, 427, 996 P.2d 416, 418 (2000).

The following orders are not appealable final judgments:

(1)       Orders denying jury trials.  O’Neill v. Dunn, 83 Nev. 228, 230, 427 P.2d 647, 648 (1967)

(2)       Orders granting or refusing a continuance.  Rosenthal v. Rosenthal, 39 Nev. 74, 153 P. 91, 92 (1915).

(3)       Orders denying summary judgment.  Cromer v. Wilson, 126 Nev. 106, 109, 225 P.3d 788, 790 (2010).

(4)       Pre-dismissal orders approving proposed settlements, entered prior to any final dismissal of the case.  Valley Bank of Nev. v. Ginsburg, 110 Nev. 440, 445, 874 P.2d 729, 733 (1994).

(5)       Orders denying or granting discovery motions.  Sunrise Hosp. v. Dailey, 109 Nev. 950, 951, 860 P.2d 162, 162-63 (1993).

(6)       Orders denying motion for leave to file a counterclaim.  Lucas v. Page, 89 Nev. 248, 249, 510 P.2d 868, 869 (1973).

(7)       Orders denying a motion to dismiss, motion for judgment on the pleadings, or motion to strike.

WHAT HAPPENS WHEN THERE ARE MULTIPLE PARTIES?

To be appealable under NRAP 3A(b)(1), the order or judgment must resolve all claims and liabilities against all parties.  Aldabe v. Evans, 83 Nev. 135, 136-37, 425 P.2d 598, 599 (1967).  If it does not, you must obtain certification under NRCP 54(b) from the District Court in order to appeal it.  Id.

DO I APPEAL AFTER JUDGMENT OR AFTER NOTICE OF ENTRY OF JUDGMENT?

If your district court requires that a notice of entry of order or judgment be filed, you should wait to appeal until after that time.  Kehoe v. Blethen, 10 Nev. 445, 453 (1876).  These can be filed by any party, so if you want to start the appellate clock ticking because you either anticipate an appeal or you want to file an appeal, you should file the notice of entry as soon as possible.

This post only discusses final judgments.  NRAP 3A contains a long list of other orders which are appealable.  In addition, there are many statutes that allow for interlocutory (i.e., immediate or early) appeals.  Be aware of your appeal rights for your claims when you file them.