Breeden v. Eighth Jud. Dist. Ct.

131 Nev., Advance Opinion 12.
IN THE SUPREME COURT OF THE STATE OF NEVADA
ADAM J. BREEDEN; AND BREEDEN & No. 66876
ASSOCIATES, A LEGAL
PROFESSIONAL LIMITED LIABILITY
COMPANY, FILED
Petitioners,
vs. MAR U 5 2015
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF
CLARK; AND THE HONORABLE
NANCY L. ALLF, DISTRICT JUDGE,
Respondents,
and
ELVIA GONZALEZ,
Real Party in Interest.
Motion to voluntarily dismiss an original petition for
extraordinary writ relief from a district court order adjudicating attorney
liens.
Motion granted; petition dismissed.
Breeden & Associates and Adam J. Breeden, Las Vegas,
for Petitioners.
Law Offices of David J. Churchill and David J. Churchill and Jolene J.
Manke, Las Vegas,
for Real Party in Interest.
BEFORE SAITTA, GIBBONS and PICKERING, JJ.
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OPINION
By the Court, PICKERING, J.:
Rule 42(b) of the Nevada Rules of Appellate Procedure
provides that, "An appeal may be dismissed on the appellant's motion on
terms agreed to by the parties or fixed by the court." We consider whether
this rule authorizes the imposition of attorney fees on a party who seeks to
voluntarily dismiss a nonfrivolous writ petition after an answer has been
filed. We conclude that it does not and thus grant the petitioners' motion
to dismiss without requiring, as a condition of the dismissal, payment of
the other side's attorney fees.
Attorney Adam J. Breeden and his law firm Breeden &
Associates (Breeden) filed a petition in this court for extraordinary writ
relief, challenging a district court order adjudicating attorney liens and
distributing settlement funds in a personal injury action. The real party
in interest, Elvia Gonzalez, is Breeden's former client. As ordered,
Gonzalez filed an answer to Breeden's writ petition. Breeden also has a
separate contract action underway against Gonzalez and others, seeking
to enforce an alleged fee-sharing agreement.
After receiving Gonzalez's answer, Breeden decided it was
more prudent to pursue the contract action than writ relief and moved to
dismiss the writ petition under NRAP 42(b). Gonzalez opposes the motion.
She asks that we resolve the petition on the merits but, if we do not, that
we require Breeden to pay her costs and attorney fees.
A lawyer seeking to recover fees may proceed by separate
contract action or by lien proceeding, depending on circumstances. For
this reason, among others, we decline to perpetuate this undecided writ
proceeding if Breeden wishes to abandon it in favor of his currently stayed
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contract action. The question remains, though, whether we may condition
the dismissal on Breeden repaying Gonzalez for the costs and attorney
fees she incurred defending this now-abandoned writ petition.
NRAP 42(b) draws its language from Rule 42(b) of the Federal
Rules of Appellate Procedure Almost without exception, federal courts
have rejected the argument that, in allowing voluntary dismissal "on
terms .. . fixed by the court," federal Rule 42(b) authorizes an award of
attorney fees against the party moving to dismiss See, e.g., Am. Auto.
Mfrs. Ass'n v. Comm'r, Mass. Dep't of Envtl. Prot., 31 F.3d 18, 28 (1st Cir.
1994); Waldrop v. U.S. Dep't of Air Force, 688 F.2d 36, 37 (7th Cir. 1982).
Like NRAP 38, Rule 38 of the Federal Rules of Appellate Procedure
authorizes fee-shifting but limits the authorization to frivolous filings.
Normally, courts encourage rather than discourage voluntary, self-
determined case resolutions. It does not make sense to penalize a party
who voluntarily dismisses a nonfrivolous appeal when, under Rule 38, the
same party with the same nonfrivolous appeal would not have to pay the
other side's fees if he or she stayed with the appeal to the bitter end.
Waldrop, 688 F.2d at 38 ("No appellant, unless his appeal was frivolous,
would move to dismiss it if he thought that by doing so he was making
himself liable to pay the appellee's attorney's fees."). We therefore hold
that NRAP 42(b) does not "provide fl authority for routine awards of
attorney[] fees as a condition of voluntary dismissal," but that attorney
fees may be awarded under NRAP 38 if an appeal or writ proceeding is
frivolous.' Am. Auto. Mfrs, Ass'n, 31 F.3d at 28; see In re Vincent, 105 F.3d
'Waldrop and American Automobile Manufacturers Ass'n apply
federal Rule 42(b) to appeals, not writ proceedings. While the second
sentence of NRAP 42(b) states that "an appeal may be dismissed on the
continued on next page...
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943, 945 (4th Cir. 1997) (applying Fed. R. App. P. 38 when considering
whether to award attorney fees for a frivolous writ petition); Liberty Mitt.
Ins. Co. v. Ward Trucking Corp., 48 F.3d 742, 751 (3d Cir. 1995) (same).
The petition in this case was not frivolous, so we deny Gonzalez's request
for attorney fees. NRAP 38(b).
But costs, as distinguished from fees, are "routinely available"
when an appellant voluntarily dismisses an appeal. Am. Auto. Mfrs,
Ass'n, 31 F.3d at 28. In the context of a federal writ petition, an original
proceeding, federal courts have awarded costs under Rule 54(d)(1) of the
Federal Rules of Civil Procedure. E.g., Cotter v. Inter-County Orthopaedic
Ass'n, P.A., 530 F.2d 536, 538 (3d Cir. 1976) (awarding costs to a
successful petitioner); see also Ariz. v. U.S. Dist. Court, 709 F.2d 521, 523
(9th Cir. 1983) (agreeing with Cotler and awarding costs to a real party in
interest after dismissing the petition). The Nevada Rules of Civil
Procedure, however, do not contain a counterpart to federal Rule 54(d)(1),
and NRS Chapter 18, which permits cost awards in Nevada district courts,
is not well-suited to awarding costs in an appellate court. Appellate costs
are allowable as of right in the context of the voluntary dismissal of an
...continued
appellant's motion," (emphasis added), the first sentence of NRAP 42(b)
refers to the voluntary dismissal of "an appeal or other proceeding," and
NRAP 1(e)(1) indicates that "appellant" and "petitioner" are
interchangeable in the NRAP where appropriate. For this and the policy
reason of not penalizing voluntary dismissals of nonfrivolous petitions or
appeals, we apply NRAP 1(e)(1) to the second sentence of NRAP 42(b) and
hold that the entirety of NRAP 42(b) governs voluntary dismissals of writ
petitions as well as appeals.
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appeal or original writ proceeding but only as provided by NRAP 39.
NRAP 39(c)(3) requires the party seeking costs to file a bill of costs with
this court, which Gonzalez has not done. We therefore deny Gonzalez's
countermotion for costs without prejudice to her right to seek allowable
costs via a bill of costs under NRAP 39. The motions for leave to file a
reply in support of the motion to dismiss and a reply in support of the
petition are denied. The clerk of this court shall reject the reply to the
petition received via E-Flex on January 29, 2015.
gektitis
Pickering
We concur:
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