First 100, Llc v. Tgc/Farkas Funding, Llc

IN THE SUPREME COURT OF THE STATE OF NEVADA
FIRST 100, LLC, A NEVADA LIMITED No. 83177
LIABILITY COMPANY; AND 1ST ONE
HUNDRED HOLDINGS, LLC, A
NEVADA LIMITED LIABILITY
FILED
COMPANY, MAR 1 7 2022
Appellants,
vs.
TGC/FARKAS FUNDING, LLC,
Res • ondent.
ORDER AFFIRMING IN PART, REVERSING IN PART AND
REMANDING, AND DISMISSING IN PART
This is an appeal from a post-judgment award of attorney fees
and costs as a civil contempt sanction. Eighth Judicial District Court, Clark
County; Mark R. Denton, Judge.'
On April 7, 2021, the district court held appellants and
nonparty Jay Bloom in civil contempt.2 The order indicated that, as a
sanction, the court would award respondent the attorney fees and costs that
respondent incurred in litigating various matters (hereafter "the relevant
mattere). Thereafter, respondent requested roughly $157,000 in fees and
roughly $5,000 in costs. Over appellants opposition, the district court
entered an order reflecting that it had considered the Brunzell factors3 and
'Pursuant to NRAP 34(f)(1), we have determined that oral argument
is not warranted in this appeal.
Contemporaneous with the disposition of this appeal, we have
2
affirmed the district coures April 7 , 2021, order in a related appeal (Docket
No. 82794).
3Brunze1l v. Golden Gate National Bank, 85 Nev. 345, 349, 455 P.2d
31, 33 (1969).
awarded respondent roughly $147,000 in fees and the full amount of
requested costs.4 As part of the contempt sanction, the district court also
held Bloom personally liable for the award.
On appeal, appellants contend (1) the amount of fees awarded
was unreasonably high, and (2) the district court erred in holding nonparty
Bloom personally liable for the award.
With respect to appellants first argument, they generally
contend that the district court abused its discretion by awarding an
unreasonably high amount of fees without adequately articulating its
Brunzell-factor analysis. Cf. Logan v. Abe, 131 Nev. 260, 266, 350 P.3d
1139, 1143 (2015) (recognizing that this court reviews an attorney fee award
for an abuse of discretion and that, while it is preferable for a district court
to provide an express analysis of the Brunzell factors, such findings are not
necessary if it is evident that the district court considered those factors).
More particularly, appellants contend that the fee award was unreasonably
high because (1) respondent's counsels' billing rates for the applicable year
(2021) were inexplicably higher than their rates for the previous year
(2020); (2) the billing rate for counsels' paralegal was too high; (3) counsel
double-billed for some of the work performed by virtue of having two
attorneys attend depositions; (4) counsel billed for a paralegal to attend an
evidentiary hearing; (5) counsel billed too many hours for drafting the
district court's April 7, 2021, order; (6) counsel billed $3,825.50 for drafting
documents that were unrelated to the relevant matters; (7) counsel billed
$1,193 for time spent inquiring about NRCP violations, none of which were
4As reflected in the minutes, the district court's roughly $10,000
reduction in the fee award reflected fees that respondent's counsel
inadvertently billed for an unrelated matter.
2
found by the district court; and (8) counsel billed $1,232 for preparing
another motion that was unrelated to the relevant matters.5
We conclude that the district court was within its discretion in
awarding the amounts contested in arguments 1 through 5. With respect
to arguments 1 and 2, respondent submitted a declaration indicating that
counsels billing rates and the paralegars billing rate were commensurate
with rates for those with similar experience. With respect to arguments 3
through 5, we are unable to conclude that the district court abused its
discretion in finding that counsels' decisions were reasonable in terms of the
time and resources they chose to devote to the relevant matters. Cf.
Brunzell, 85 Nev. at 349, 455 P.2d at 33 (listing the "difficult?' of the work
performed, the "importance, time and skill required" of the work performed,
and "the skill, time and attention given to the work" as relevant factors to
consider). With respect to arguments 6 through 8, however, we agree with
appellants that the district court improperly awarded fees for those
amounts. In particular, appellants' contention that those amounts have no
relation to the relevant matters appears accurate and is not contested by
respondent on appeal. See Ozawa v. Vision Airlines, Inc., 125 Nev. 556, 563,
216 P.3d 788, 793 (2009) (recognizing that failure to respond to an argument
can be treated as a confession of error).
Accordingly, and only insofar as the district court awarded fees
relating to arguments 6 through 8, we reverse the award of fees in that
5Tothe extent that appellants raise additional arguments, we are not
persuaded that those arguments warrant specific discussion.
3
respect.6 We affirm the remaining portion of the district courfs fee award
and the entirety of its cost award.
With respect to appellants second argument, respondent
contends that this court lacks jurisdiction because Bloom, who is the only
person aggrieved by the district court holding him personally liable, was not
a party to the underlying proceedings and did not file a writ petition
challenging the district courf s order. Cf. Mona v. Eighth Judicial Dist.
Court, 132 Nev. 719, 724-25, 380 P.3d 836, 840 (2016) ([W]here the
sanctioned party was not a party to the litigation below, he or she has no
standing to appeal."); Detwiler v. Eighth Judicial Dist. Court, 137 Nev., Adv.
Op. 18, 486 P.3d 710, 715 (2021) ("Where no rule or statute provides for an
appeal of a contempt order, the order may properly be reviewed by writ
petition."). Appellants do not meaningfully refute respondent's contention
but instead argue that they are challenging the district courVs order insofar
as it held them liable for the award. We decline to consider this argument
because appellants' opening brief did not allude to any such argument. See
Francis v. Wynn Las Vegas, LLC, 127 Nev. 657, 671 n.7, 262 P.3d 705, 715
n.7 (2011) (observing that this court generally declines to consider
arguments raised for the first time in a reply brief). Accordingly, we agree
with respondent that we lack jurisdiction in the context of this appeal to
consider whether the district court appropriately held nonparty Bloom
personally liable for the fee and cost award.
Consistent with the foregoing, we affirm in part and reverse in
part the district court's award of fees and costs, and we remand this matter
60urcalculation reflects this to be a total of $6,250.50. To the extent
the parties disagree with this figure, they may present any such
disagreement to the district court on remand.
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for proceedings consistent with this order. We also dismiss this appeal
insofar as it challenges the district court's decision to hold Bloom personally
liable for the fee and cost award.
It is so ORDERED.7
arraguirre
J. , Sr.J.
Stiglich ons
cc: Hon. Mark R. Denton, District Judge
Persi J. Mishel, Settlement Judge
Maier Gutierrez & Associates
Garman Turner Gordon
Eighth District Court Clerk
7The Honorable Mark Gibbons, Senior Justice, participated in the
decision of this matter under a general order of assignment.
5