Phillips v. Dist. Ct. (Burford)

IN THE SUPREME COURT OF THE STATE OF NEVADA
DAVID PHILLIPS, No. 69722
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA, IN
AND FOR THE COUNTY OF CLARK;
FILE
AND THE HONORABLE ELISSA F. JUL 1 3 2016
CADISH, DISTRICT JUDGE,
Respondents,
and
PAMELA BURFORD; AND AURI ALLEN,
Real Parties in Interest.
ORDER DENYING PETITION
FOR WRIT OF PROHIBITION OR MANDAMUS
This original petition for a writ of prohibition or mandamus
challenges successive district court orders adjudicating an attorney's lien.
Real parties in interest Pamela Burford and Auri Allen were
involved in a vehicular accident resulting in significant injuries. They
hired petitioner David Phillips to represent their interests. Phillips
settled with their insurer under their uninsured motorist coverage (UIM)
and then filed a complaint against the other driver and the owner of the
other vehicle.
Thereafter, Phillips obtained a default, but Burford and Allen
became unsatisfied with Phillips and hired their current counsel to
represent them. When Burford and Allen moved to substitute counsel,
Phillips counter-moved for adjudication of his attorney lien arising from
the fee agreement. Burford and Allen consented to the district court's
adjudication of Phillips' lien and attorney fees, and the district court
issued an order on November 8, 2010, adjudicating Phillips' lien on the
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UIM proceeds, stating the amounts that Phillips owed to Burford and
Allen from those proceeds, and otherwise denying Phillips a lien on the
pending litigation. Phillips appealed from that order, and this court
dismissed the appeal under Albert D. Massi, Ltd. v. Bellmyre, 111 Nev.
1520, 908 P.2d 705 (1995), because Phillips was not a party to the
underlying litigation. Phillips v. Burford, Docket No. 57290 (Order
Dismissing Appeal, November 18, 2011).
After the appeal was dismissed, Phillips moved for
clarification from the district court regarding whether it had personal
jurisdiction over Phillips and jurisdiction to adjudicate Phillips' lien and
the fee dispute. On September 12, 2012, the district court entered an
order finding that Burford, Allen, and Phillips had consented to the
district court's adjudication of the lien and attorney fees, and that it had
jurisdiction. Phillips again appealed, and this court again dismissed the
appeal under Massi. Phillips v. Burford, Docket No. 65605 (Order
Dismissing Appeal, October 24, 2014).
More recently, Burford and Allen moved to enforce the district
court's orders against Phillips and for an order to show cause why Phillips
should not be held in contempt for failing to comply with the 2010 district
court order. Phillips then filed the instant writ petition. Burford and
Allen filed an answer and Phillips filed a reply.
Phillips argues that the district court does not have personal
jurisdiction over him because a prima facie showing was not made and he
is not a party to the underlying litigation who is entitled to appeal under
NRAP 3A(a), and that the district court does not have subject matter
jurisdiction over any issues concerning the UIM proceeds. The first
argument confuses the district court's jurisdiction to adjudicate attorney
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liens with a party's standing to appeal. Under NRAP 3A(a), an aggrieved
"party" may appeal from one of the orders enumerated in NRAP 3A(b).
We have previously held that an attorney is not a party to the underlying
litigation, Albert D. Massi, Ltd. v. Bellmyre, 111 Nev. 1520, 908 P.2d 705
(1995), and so he may not appeal from a district court order adjudicating
an attorney lien in that litigation. Instead, he must challenge such an
order via petition for a writ of mandamus. Id. This point of appellate
procedure and jurisdiction, however, is irrelevant to the district court's
jurisdiction over an attorney and to adjudicate an attorney lien. Here,
Phillips filed the complaint on behalf of his clients and moved for an
adjudication of his lien, thus placing himself within the jurisdiction of the
district court. Argentena Consol. Mining Co. v. Jolley Urga Wirth
Woodbury & Standish, 125 Nev. 527, 532, 216 P.3d 779, 782-83 (2009)
(noting that personal jurisdiction over the attorney can be based on "the
attorney's appearance as the client's counsel of record").
Further, Phillips' second argument concerning the district
court's subject matter jurisdiction also lacks merit. Initially, while the
district court has jurisdiction under NRS 18.015 1 to adjudicate an
attorney's charging lien, it is unclear from the record if any charging lien
was perfected under NRS 18.015(2). See Leventhal v. Black & LoBello,
129 Nev., Adv. Op. 50, 305 P.3d 907, 909 (2013) (discussing perfection of a
charging lien). Phillips also had a common law retaining lien on Burford's
and Allen's files and the UIM proceeds. The district court's jurisdiction
IThe 2013 Legislature amended NRS 18.015. 2013 Nev. Stat., ch.
79, § 1, at 271; S.B. 140, 77th Leg. (Nev. 2013). This writ petition is
governed by the pre-amendment version of NRS 18.015, which only
provided for charging liens. See NRS 18.015 (2012).
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over the retaining lien was governed by Argentena. In Argentena, we held
that a district court could adjudicate a retaining lien with the consent of
the clients. 125 Nev. at 534, 216 P.3d at 784. Here, Burford and Allen
consented to the district court's adjudication of the retaining lien, giving
the district court jurisdiction to do so. Id. Thus, we agree with the district
court that it had personal and subject matter jurisdiction to enter the
November 8, 2010, order regarding Phillips' retaining lien over the UIM
proceeds.
Accordingly, we
ORDER the petition DENIED.
cc: Hon. Elissa F. Cadish, District Judge
Jerry T. Donohue
Sean Claggett & Associates, Inc.
Eighth District Court Clerk
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