LAS VEGAS REVIEW-JOURNAL v. CITY OF HENDERSON , 2021 NV 81 ( 2021 )

137 Nev., Advance Opinion 61
IN THE SUPREME COURT OF THE STATE OF NEVADA
LAS VEGAS REVIEW-JOURNAL, No. 81758
Appellant,
vs. FILE
CITY OF HENDERSON,
Respondent.
Appeal from a district court order denying a motion for attorney
fees and costs in a public records matter. Eighth Judicial District Court,
Clark County; Trevor L. Atkin, Judge.
Affirmed in part, reversed in part, and remanded.
McLetchie Law and Margaret A. McLetchie and Alina M. Shell, Las Vegas,
for Appellant.
Nicholas G. Vaskov, City Attorney, and Brandon P. Kemble and Brian R.
Reeve, Assistant City Attorneys, Henderson; Bailey Kennedy and Dennis L.
Kennedy, Sarah E. Harmon, and Andrea M. Champion, Las Vegas,
for Respondent.
BEFORE THE SUPREME COURT, PARRAGUIRRE, STIGLICH, and
SILVER, JJ.
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OPINION
By the Court, STIGLICH, J.:
The Nevada Public Records Act (NPRA) requires governmental
bodies to make nonconfidential public records within their legal custody or
control available to the public. Where a governmental body denies a public
records request, the requester may apply to the court for an order
compelling production. If the requester prevails, the requester may recover
costs and reasonable attorney fees.
During the pendency of this dispute, this court adopted the
catalyst theory to determine whether a requesting party prevails in such
litigation when the governmental body ultimately provides the records
without mandate by court order. Under the catalyst theory, the requesting
party may be able to recover attorney fees when the defendant changes its
behavior because of and as sought by the litigation. Here, appellant Las
Vegas Review-Journal (LVRJ) requested records from respondent City of
Henderson and filed suit to compel their production, but Henderson
eventually produced the records without court mandate before the litigation
reached its conclusion. LVRJ requested attorney fees, and the district court
applied the catalyst theory in denying the request. The district court,
however, misconstrued one of the factors in the catalyst-theory analysis and
neglected to conduct more than a summary analysis of several other factors.
Accordingly, we reverse the district court's order and remand for further
proceedings consistent with our guidance herein on applying the catalyst
theory.
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FACTUAL AND PROCEDURAL BACKGROUND
Litigation relating to this dispute has twice before reached this
court. 13V-1U submitted a public records request to Henderson under the
NPRA for documents related to Henderson's use of a public relations firm.
Cf. NRS 239.001. Henderson performed a search and determined that
LITRJ's request encompassed approximately 70,000 pages of documents.
Within five business days of LVRJ's request, Henderson responded that its
search yielded a large set of documents and that it would need to review the
documents for privilege and confidentiality before it could provide copies to
LVRJ. Henderson requested a payment from LVRJ to cover the cost of the
privilege review and requested a deposit of half of that sum before it would
begin the privilege review.
LVRJ sought mandamus relief in district court, arguing that
Henderson should be compelled to provide the records without payment of
the privilege-review fee. After LVR,J filed the mandamus petition,
Henderson reviewed the documents for privilege and permitted LVRJ to
inspect the nonprivileged records while they litigated the privilege-review
fee. Henderson provided a privilege log and ultimately provided copies of
the records to LVRJ, except for those listed in the privilege log. The district
court found that Henderson's actions satisfied its requirements under the
NPRA, and LVRJ appealed. On appeal, LVRJ argued, among other claims,
that the privilege log was insufficient and that it did not make clear whether
the withheld documents were protected by the attorney-client, work-
product, or deliberative-process privileges. This court disagreed as to the
attorney-client- and work-product-protected documents but agreed that the
district court should have balanced whether Henderson's interest in
nondisclosure clearly outweighed the public's interest in accessing the
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deliberative-process-privileged documents, and we remanded to the district
court to conduct this analysis. Las Vegas Review-Journal v. City of
Henderson, No. 73287, 2019 WL 2252868 (Nev. May 24, 2019) (Order
Affirming in Part, Reversing in Part, and Remanding). Thereafter, before
the court addressed the issue on remand, Henderson voluntarily disclosed
the 11 documents that it had withheld pursuant to the deliberative-process
privilege.
Meanwhile, the district court resolved LVR.J's pending motion
for attorney fees, granting it in part after concluding that LVRJ. prevailed
in accessing records from Henderson. Henderson appealed, and LVRJ.
cross-appealed, as the district court awarded less than LVRJ had sought.
This court observed that LVRJ had not prevailed as to its request for the
records withheld pursuant to the deliberative-process privilege because that
issue had been remanded to the district court to resolve. City of Henderson
v. Las Vegas Review-Journctl, No. 75407, 2019 WL 5290874 (Nev. Oct. 17,
2019) (Order of Reversal). We further observed that this court affirmed the
district coures denials of LVIlj's other claims and concluded that the
district court therefore erred in finding that LVRJ was a prevailing party.
Id.; cf. Las Vegas Review-Journal, 2019 WL 2252868. Accordingly, we
reversed the district court's partial award of attorney fees. City of
Henderson, 2019 WL 5290874.
Subsequently, this court issued Las Vegas Metropolitan Police
Department v. Center for Investigative Reporting, Inc., 136 Nev. 122, 460
P.3d 952 (2020) (CIR), concluding that whether a party prevails and may
recover attorney fees in a public records matter that has not proceeded to
final judgment is determined by the catalyst theory. LVRJ amended its
request for attorney fees and argued that it was entitled to recovery as the
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prevailing party under the catalyst theory. The district court found that
the law-of-the-case doctrine barred LVRJ from seeking prevailing-party
fees on any claims besides those related to the deliberative-process
privilege, concluded that LVRJ likewise was not a prevailing party for the
11 documents withheld under the deliberative-process privilege, and denied
the motion. This appeal followed.
DISCUSSION
As a preliminary matter, LVRJ argues that the district court
erred when it limited the scope of attorney fees that may be recoverable to
LVRJ's efforts to obtain the 11 deliberative-process-privilege documents.
LVRJ argues that it was entitled to recover its fees relating to its efforts to
access the broader set of requested records because its litigation was the
catalyst for their disclosure. Henderson argued below that the law of the
case precluded LVILT from seeking recovery for the larger universe of
records because this court concluded that LVRJ was not the prevailing
party on any of its claims related to those documents. Cf. City of Henderson,
2019 WL 5290874. The district court agreed and denied LVRJ's request for
attorney fees for these efforts, concluding that the law of the case was
dispositive. LVRJ did not challenge application of the law-of-the-case
doctrine below or in its opening brief, addressing the issue for the first time
in its reply brief. Accordingly, we conclude that LVRJ waived the issue and
decline to consider it. See Weaver v. State, Dep't of Motor Vehicles, 121 Nev.
494, 502, 117 P.3d 193, 198-99 (2005) (providing that issues raised for the
first time in an appellant's reply brief need not be considered). Accordingly,
we affirm the district court's order to the extent that it concluded the law-
of-the-case doctrine limited the scope of attorney fees for which LVRJ could
seek recovery.
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The district court abused its discretion in its catalyst-theory analysis
LVRJ next argues that the district court misapplied the
catalyst theory when it denied LVRJ attorney fees and costs. "[A]ttorney
fees may not be awarded absent a statute, rule, or contract authorizing such
award." Thomas v. City of N. Las Vegas, 122 Nev. 82, 90, 127 P.3d 1057,
1063 (2006). NRS 239.011(2) provides that a prevailing party may recover
costs and attorney fees. "A party prevails if it succeeds on any significant
issue in litigation which achieves some of the benefit it sought in bringing
suit." Las Vegas Metro. Police Dep't v. Blackjack Bonding, Inc., 131 Nev.
80, 90, 343 P.3d 608, 615 (2015) (internal quotation marks omitted).
Generally, an action must have proceeded to final judgment for a party to
have prevailed. Dimick v. Dimick, 112 Nev. 402, 404, 915 P.2d 254, 256
(1996). Whether a party prevails in a public records matter that ultimately
is resolved outside the court is determined by application of the catalyst
theory. CIR, 136 Nev. at 127-28, 460 P.3d at 957. "Under the catalyst
theory, a requester prevails when its public records suit causes the
governmental agency to substantially change its behavior in the manner
sought by the requester, even when the litigation does not result in a
judicial decision on the merits." Id. at 128, 460 P.3d at 957. In assessing
whether a requester prevailed under the catalyst theory, the district court
must consider
(1) when the documents were released, (2) what
actually triggered the documents release, . . .
(3) whether [the requester] was entitled to the
documents at an earlier time. Additionally, the
district court should take into consideration
[4] whether the litigation was frivolous,
unreasonable, or groundless, and [5] whether
the requester reasonably attempted to settle the
matter short of litigation by notifying the
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governmental agency of its grievances and giving
the agency an opportunity to supply the records
within a reasonable time.
Id. at 128, 460 P.3d at 957-58 (internal quotation marks and citation
omitted). We clarify that consideration of these factors is mandatory. Cf.
O'Connell v. Wynn Las Vegas, LLC, 134 Nev. 550, 554, 429 P.3d 664, 668
(Ct. App. 2018) (observing that consideration of the Beattie v. Thomas, 99
Nev. 579, 588-89, 668 P.2d 268, 274 (1983), factors is mandatory in
considering whether to award fees pursuant to NRCP 68). Whether
attorney fees are warranted is a fact-intensive inquiry. Wynn v. Smith, 117
Nev. 6, 13, 16 P.3d 424, 428 (2001). We review an award of attorney fees
for an abuse of discretion. Thomas, 122 Nev. at 90, 127 P.3d at 1063. An
abuse of discretion can occur when the district court bases its decision on a
clearly erroneous factual determination or disregards controlling law.
Blackjack Bonding, 131 Nev. at 89, 343 P.3d at 614. While the failure to
enter explicit findings of each factor is not necessarily an abuse of
discretion, specific findings are strongly encouraged, and the record must
demonstrate that the district court properly considered each of the required
factors. See Wynn, 117 Nev. at 13, 16 P.3d at 428-29 (discussing fee awards
pursuant to offers of judgment).
We conclude that the district court abused its discretion in its
catalyst-theory analysis, as the court misconstrued the fifth CIR factor and
neglected to show that it appropriately considered several other factors.
In its fifth factor, CIR requires the district court to consider
iCw
hether the requester reasonably attempted to settle," CIR, 136 Nev. at
128, 460 P.3d at 957-58, yet the district court found that Henderson "made
more efforts" to settle than did the request-receiving party in CIR. The
district court thus incorrectly examined whether the government made an
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attempt to settle, not whether the requester did so, as CIR directs. This
inverted the analysis that the factor requires and, by not considering
requester LVRJ's efforts to settle the dispute, frustrated the purpose of the
catalyst-theory analysis. Here, the record reflects that LVRJ did not make
a reasonable attempt to settle. LVRJ refused to receive Henderson's calls,
return Henderson's messages, or confer with Henderson to refine the search
terms for the public-records request. LVRJ's rush to litigation is precisely
the type of conduct this court sought to discourage. CIR, 136 Nev. at 128,
460 P.3d at 957 (noting that this court adopted the CIR factors to "alleviate
concerns that the catalyst theory will encourage requesters to litigate their
requests in district court unnecessarily"). LVRJ's lack of settlement efforts
raises doubts about whether its litigation triggered the release of the 11
deliberative-process-privilege documents and whether the litigation was
frivolous (the second and fourth CIR factors). Had the district court
properly construed this factor, it would have been better able to determine
whether LVRJ's litigation was the catalyst for the disclosure of the
documents initially withheld pursuant to the deliberative-process privilege.
LVRJ argues that the fifth factor should receive the least
weight. LVRJ argues that the foreign authorities CIR discusses operate in
the context of distinguishable statutory bases. We decline the invitation to
reconsider the doctrine that we adopted in CIR on this basis. We stated no
such limitation when we adopted the catalyst theory in CIR, and we decline
to modify the standard in this way or direct district courts to apply greater
or lesser weight to any of the factors in all instances, regardless of the
nuances that specific circumstances may present.
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The district court also failed to correctly make adequate
findings concerning the second, third, and fourth CIR factors, failed to
balance them against each other, and thus further misapplied CIR.
Although the district court stated the second and third factors and the
parties respective positions, it did not seriously engage with those factors.
It ultimately summarily concluded that LVRJ was not a prevailing party
because the circumstances were distinguishable from those in CIR.1 Even
though the catalyst theory tasked the district court with determining
whether there was "a factual causal nexus between" LVRJ's litigation and
Henderson providing the 11 documents, CIR, 136 Nev. at 127, 460 P.3d at
957 (internal quotation marks omitted), the district court's order carries
none of the hallmarks of the fact-intensive inquiry this requires. In not
considering specific facts relevant to each factor, the district court's order
does not provide any guidance as to whether a given factor supported the
conclusion that LVRJ did not prevail. And without considered discussion of
these factors, this court is unable to review why the district court concluded,
after purporting to balance these factors, that LVRJ was not the prevailing
party. See Davis v. Ewalefo, 131 Nev. 445, 450, 352 P.3d 1139, 1142 (2015)
(providing that we do not defer "to findings so conclusory they may mask
legal error"); Schwartz v. Estate of Greenspun, 110 Nev. 1042, 1050, 881
P.2d 638, 643 (1994) ("It is difficult at best for this court to review claims of
error in the award of such fees where the courts have failed to memorialize,
in succinct terms, the justification or rationale for the awards.").
1The district court appropriately considered the first factor—when the
documents were made available—by finding that Henderson voluntarily
released the 11 deliberative-process-privilege documents two years after
LVRJ filed its NPRA action.
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The second CIR factor requires a "causal nexus between the
litigation and the voluntary disclosure or change in position by the
Government." CIR, 136 Nev. at 128, 460 P.3d at 957 (quoting First
Amendment Coal. v. U.S. Dep't of Justice, 878 F.3d 1119, 1128 (9th Cir.
2017)). "[T]hat information sought was not released until after the lawsuit
was instituted is insufficient to establish that the requester prevailed."
CIR, 136 Nev. at 128, 460 P.3d at 957 (internal quotation marks omitted).
Accordingly, the district court was obligated to find whether the litigation
actually caused the disclosure of the contested 11 documents or whether
Henderson would have produced them absent LVRXs suit.
The third CIR factor required the court to determine whether
LVRJ was entitled to receive the documents at an earlier time. This
required reviewing the merits of Henderson's claim that the documents
were protected by the deliberative-process privilege, even though, by that
time, the documents had been provided. See id. at 129, 460 P.3d at 958.
While the district court made a factual determination for the
fourth CIR factor, its reasoning was clearly erroneous. The fourth factor
considers whether the requester brought a frivolous suit. Id. at 128, 460
P.3d at 957. Here, the district court concluded that LVRXs suit was not
frivolous because this court did not deem it so in the previous two appeals
to this court. The district court's reliance on this court's silence was
misplaced, as we did not consider frivolousness in the earlier appeals. See
Toissant v. McCarthy, 801 F.2d 1080, 1092 n.10 (9th Cir. 1986) (concluding
the argument that "the Court's silence indicates approval" or disapproval
"seriously misapprehends the nature of judicial opinion"), abrogated in part
on other grounds by Sandin v. Conner, 515 U.S. 472, 482-84 (1995). Thus,
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the district court failed to enter fmdings showing that it conducted a
searching inquiry of the facts relevant to this factor.
Accordingly, we conclude that the district court abused its
discretion by failing to show that it appropriately considered and weighed
the CIR factors in reaching its conclusion. Therefore, the district coures
order is reversed, and we remand for the limited purpose of analyzing all of
the catalyst-theory factors and making proper findings as to this subset of
11 documents. The district court must then balance the catalyst-theory
factors to determine whether LVRJ's litigation properly was "the catalyst"
and thus LVRJ is the prevailing party with regard to those documents.
CONCLUSION
Public records requests present a particular context in which
attorney fees and costs may be warranted even though the matter never
reaches a final judicial disposition. To resolve when such an award may be
appropriate, this court adopted the catalyst theory. As in other attorney-
fee contexts, this analysis requires closely scrutinizing the facts specific to
the circumstances and entering findings showing that the court has duly
considered the mandatory factors. The district coures order here contains
summary statements of several factors and misstates another. On this
basis, our ability to review the soundness of the district court's disposition
is severely hindered. Accordingly, we conclude that the district court
abused its discretion in applying the catalyst theory. We need not reach
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LVRJ's claim that the district court improperly limited the scope of the
efforts for which it was permitted to seek recovery of attorney fees, which
LVRJ raised for the first time in its reply brief. We affirm the district court's
order insofar as it denied attorney fees based on obtaining documents other
than the 11 subject to the deliberative-process-privilege analysis, reverse
the remaining portion of the district court's order concerning fees related to
those 11 documents, and remand for further proceedings consistent with
this opinion.
Ai4C102
Stiglich
We concur:
111611
Parraguirre
J.
J.
Silver
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