Tulelake Horseradish, Inc. v. Santa Margarita Ranch, LLC

IN THE SUPREME COURT OF THE STATE OF NEVADA
TULELAKE HORSERADISH, INC., No. 69305
Appellant,
vs.
SANTA MARGARITA RANCH, LLC, A FILED
NEVADA LIMITED LIABILITY
COMPANY; KEN MAHAN; AND MARK
JUN 2 0 2016
S. MAHAN,
Respondents.
ORDER AFFIRMING IN PART,
REVERSING IN PART AND REMANDING
This is an appeal from a district court order awarding attorney
fees following remand. Third Judicial District Court, Lyon County; Leon
Aberasturi, Judge.
Following this court's remand in appellant's previous appeal,
appellant requested attorney fees for the following five time frames: (1)
$33,865 from the time appellant instituted the action to when respondents
accepted the offer of judgment; (2) $8,250 for post-acceptance litigation in
district court concerning whether appellant could reserve its right to seek
attorney fees under NRS 18.010(2)(a); (3) $11,028 for litigating
respondents' writ petition in Docket No. 63369 on that same issue; (4)
$13,233 for post-writ petition litigation in district court concerning
whether a settling party could be a "prevailing party" under NRS
18.010(2)(a); and (5) $15,075 for litigating appellant's appeal in Docket No.
66707 on that same issue.
In a November 10, 2015, order, the district court awarded
appellant $46,465 in fees, consisting of the full amount requested for time
frame 1, none of the amounts requested for time frames 2 and 4, and a
combined total of $12,600 for time frames 3 and 5. On appeal, appellant
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contends that the district court abused its discretion in (1) failing to
explain why it did not award the full amounts requested for time frames 3
and 5, and (2) failing to explain why it denied outright the amounts
requested for time frames 2 and 4. See Las Vegas Metro. Police Dep't v.
Blackjack Bonding, Inc., 131 Nev., Adv. Op. 10, 343 P.3d 608, 614 (2015)
(reviewing an award of attorney fees for an abuse of discretion). We
address each issue in turn.
With regard to the first issue, respondents correctly argue on
appeal that no fees should have been awarded for time frames 3 and 5, as
NRS 18.010(2) does not authorize an award of appellate attorney fees. See
Bd. of Gallery of History, Inc. v. Datecs Corp., 116 Nev. 286, 288, 994 P.2d
1149, 1150 (2000) ("There is no provision in [NRS 18.010(2)11 authorizing
the district court to award attorney fees incurred on appeal."); Bobby
Berosini, Ltd. v. People for the Ethical Treatment of Animals, 114 Nev.
1348, 1356-57, 971 P.2d 383, 388 (1998) (concluding that NRS 18.010 does
not entitle a party to attorney fees on appeal because the statute "does not
explicitly authorize attorney's fees on appeal")'; cf. Pan v. Eighth Judicial
1 We recognize that footnote 4 of our disposition in Docket No. 66707
may have caused confusion for appellant and the district court. However,
our observation that "fees from [that] appeal may be warranted" was not
intended to absolve appellant of its obligation to demonstrate that those
fees were authorized by a statute, rule, or contractual provision. See Bd.
of Gallery of History, Inc. v. Datecs Corp., 116 Nev. 286, 288, 994 P.2d
1149, 1150 (2000). To the extent that the rationale in Datecs and Bobby
Berosini is at odds with the rationale in In re Estate and Living Trust of
Miller, 125 Nev. 550, 555, 216 P.3d 239, 243 (2009), and Muss° v. Binick,
104 Nev. 613, 614-15, 764 P.2d 477, 477 (1988), we need not harmonize
those cases in this appeal, as appellant has not cogently argued the issue.
See Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d
1280, 1288 n.38 (2006).
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ic,
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Dist. Court, 120 Nev. 222, 229, 88 P.3d 840, 844 (2004) ("A petition for writ
relief invokes this court's original jurisdiction."). Thus, we need not
consider whether the district court abused its discretion in declining to
award more than $12,600 for time frames 3 and 5. However, because
respondents did not file a notice of cross-appeal from the district court's
order, we lack jurisdiction to vacate the $12,600 that was awarded. See
Ford v. Showboat Operating Co., 110 Nev. 752, 755, 877 P.2d 546, 548
(1994) (concluding that a party "who seeks to alter the rights of the parties
under a judgment must file a notice of cross-appeal"). Accordingly, we
affirm the district court's November 10, 2015, order to the extent that it
awarded $12,600 in fees for time frames 3 and 5.
With regard to the second issue, appellant correctly points out
that the district court failed to even mention time frames 2 and 4 in its
November 10, 2015, order, let alone provide any explanation for denying
outright the requested fees for those time frames. Cf. Lyon v. Walker
Boudwin Constr. Co., 88 Nev. 646, 651, 503 P.2d 1219, 1221-22 (1972)
(recognizing that a district court abuses its discretion when it fails to state
a reason for denying a request for attorney fees). In opposition,
respondents appear to suggest that the district court impliedly determined
that fees for those time frames were not recoverable because those fees
were incurred after respondents accepted appellant's offer of judgment. To
the extent that this was the district court's reasoning, we reject it, as
respondents did not identify any authority that would prohibit appellant
from seeking fees that it incurred post-acceptance. In the absence of any
specific arguments by respondents regarding the propriety of the amounts
of fees requested for time frames 2 and 4, we conclude that the district
court erred in failing to award appellant the full amounts requested for
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those time frames. Accordingly, we reverse the district court's November
10, 2015, order to the extent that it declined to award appellant's
requested fees for time frames 2 and 4.
In sum, we affirm the district court's November 10, 2015,
order to the extent that it awarded attorney fees in the combined amount
of $12,600 for time frames 3 and 5. 2 Additionally, we reverse the district
court's November 10, 2015, order to the extent that it declined to award
appellant's requested fees for time frames 2 and 4 and remand this matter
for the district court to enter a judgment in favor of appellant consistent
with this order.
It is so ORDERED.
7.)
Ate "74
Douglas
J.
J.
cc: Hon. Leon Aberasturi, District Judge
Law Office of James Shields Beasley
Law Offices of Roderic A. Carucci
Third District Court Clerk
We necessarily affirm the award of fees for time frame 1 and the
2
award of costs because those awards have not been challenged on appeal.
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