IN THE SUPREME COURT OF THE STATE OF NEVADA
COMSTOCK RESIDENTS No. 83463 ASSOCIATION; AND JOE MCCARTHY, Appellants, vs. LE LYON COUNTY BOARD OF SEP 1.6 2022 COMMISSIONERS; AND COMSTOCK A. BROWN MINING INCORPORATED, S .1 REM C URT
Respondents. E U 'LEW(
ORDER AFFIRMING IN .PART, REVERSING IN PART, AND REMANDING This is an appeal from a district court postjudgment order awarding attorney fees an.d costs. Third judicial District Court, Lyon County; Robert E. :Estes, judge.
Appellants Comstock :Residents Association and joe McCarthy (collectively, CRA) brought a complaint for declaratory and injunctive relief/petition fo.r judicial review against the :Lyon County Board of Commissioners (the Board) and respondent Comstock Mining :Inc. (CMI), in 2013. The complaint challenged the Board's decision to grant CMI's application to amend the master plan for Lyon County. The amendment would change land use designations and zonin.g within Silver City to allow CMI to mine in the area with a special use permit. CRA all.eged the following causes of action: (1) violation of Nevada's open meeting laws, (2) denial of due process, (3) abuse of discretion, and. (4) violation of N.R.S 278.220. After lengthy litigation spanning eight years, CMI. ultimately prevailed on a.1.i claims and filed a motion for attorney fees and costs. The district court granted the motion, awarding $201,580.00 in attorney fees and $1,571.47 in costs, totaling $203,151..47. CRA now appeals that SUPREME COURT OF NEVADA
OM 1947A q07- decision, contending that the district court erred in awarding attorney fees
under NRS 278.0237 and NRS 1.8.01.0, and arguing that even if CM! was
entitled to attorney fees, the district court erred because it failed to niake
any Brunzelll find.ings.
The district court erred in awarding attorney fees under NRS 278.0237(2) but did not err in awarding attorney fees under NRS 18.010(2)(b) "[A]ttorney[i fees are not recoverable absent a statute, rule or
contractual provision to the contrary." .Rowland v. Lepire, 99 Nev. 308, 315,
662 P.2d 1.332, :1336 (1983). When eligibility for an attorney fee award
depends on interpretation of a statute or court rule, the district court's
decision is reviewed de novo. Logan v. Abe, 1.31. Nev, 260, 264, 350 .P. 3d
1.1.39, 1.141. (201.5). .Here, we conclude that while the district court
erroneously awarded attorney fees to CMI. under NRS 278.0237(2), fees
were proper under NRS 18.01.0(2)(b).
NRS 278.0233(1.) allows "[aljny person who has any ri.ght, title
or interest in real. property," and who has filed a legally required application
for a permit, to sue the agency reviewing the application under certain.
circumstances. If that party prevails, then the court may award them
attorney fees under NRS 278.0237(2). CM.1 was not aggrieved by the decision and did not file suit, so the possibility of attorney fees under NRS
278.0237(2) was not available to it. MGM Mirage v. Nev. Ins. Guar. Ass'n,
125 Nev. 223, 228-29, 209 P.3d 766, 769 (2009) ("[W] hen the language of a
statute is plain and unambiguous . . . this court sh.ou.ld not construe that
1.Brunzell v. Golden Gate Nat'l .Bank, 85 Nev. 34.5, 349 4,55 P.2d 31., 33 (1969) (detailing factors tb.e district court shoul.d consider when awarding attorney fees). SUPREME COURT OF
NEVADA
, I44r5" 2 1.01 I947A statute otherwise."). Thus, the district court erred in awarding attorney
fees to CMI. under NRS 278.0237(2).
However, under NRS 1.8.010(2)(b), a district court may award
"attorney[ l fees to a prevailing party . . . [w]ithout regard to the recovery
sought, when the court finds that the claim . . . of the opposing party was
brought o.r mai.ntained without reasonable ground or to harass the
prevailing party." "Although a district court has discretion to award attorney fees under NRS 18.01.0(2)(b), there must be evidence supporting
the district court's finding that the claim or defense was unreasonable or
brought to harass." Frederic & Barbara Rosenberg Living Tr. v. MacDonald
Highlands Realty, LLC, 1.34 Nev. 570, 580-81., 4.27 P.3d 1.04., 1.13 (2018)
(quoting I3ower v. Harrah's Laughlin, Inc., 1.25 Nev. 470, 493, 215 P.3d 709,
726 (2009) modified on other grounds).
Here, all causes of action in CRA's complaint were only properly
pursued as to the Board, not CMI as none of the causes of acti.on are even
legally cognizable against CMI. The first cause of action fbr violation of
Nevada's open meeting laws could not have been brought against CMI, as it can only be brought against a public body. See NRS 241.01.6(1.) ("The
meeti.ngs of a public body . . . are subject to the provis:ions of this chapter.");
NRS 241.01.5(4)(a) (defining "public body," in part, as "[alny administrative,
advi.sory, executive or legislative body of the State or a local government
consisting of at least two persons which expends or disburses or is supported.
in whole or in part by tax revenue ."). The second cause of action. for
denial of due process likewise must be brought against the state. See U.S.
Const. ame.n.d. § 1 (providing that no state "shall... deprive any
person of life, liberty, or property, w.ithout due process °flaw"); Nev. Const.
art. 1., § 8 (same). The third cause of action for abuse of discretion also could
3 not have been brought against CMI, as the discretionary act was the Board's granting of CM.I's application. See Cty. of Clark v. Doumani, 114 Nev. 46, 53, 952 P.2d 1.3, 17 (1998) ("The grant or denial of a rezoning request i.s a discretionary act."), superseded. by statute on other grounds as stated in Scenic Nev., Inc. v. City of Reno, No. 80644, 2021. WIL 1978360 at *1. (Nev. May 17, 2021.) (Order of Affirmance).
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IN THE SUPREME COURT OF THE STATE OF NEVADA
COMSTOCK RESIDENTS No. 83463 ASSOCIATION; AND JOE MCCARTHY, Appellants, vs. LE LYON COUNTY BOARD OF SEP 1.6 2022 COMMISSIONERS; AND COMSTOCK A. BROWN MINING INCORPORATED, S .1 REM C URT
Respondents. E U 'LEW(
ORDER AFFIRMING IN .PART, REVERSING IN PART, AND REMANDING This is an appeal from a district court postjudgment order awarding attorney fees an.d costs. Third judicial District Court, Lyon County; Robert E. :Estes, judge.
Appellants Comstock :Residents Association and joe McCarthy (collectively, CRA) brought a complaint for declaratory and injunctive relief/petition fo.r judicial review against the :Lyon County Board of Commissioners (the Board) and respondent Comstock Mining :Inc. (CMI), in 2013. The complaint challenged the Board's decision to grant CMI's application to amend the master plan for Lyon County. The amendment would change land use designations and zonin.g within Silver City to allow CMI to mine in the area with a special use permit. CRA all.eged the following causes of action: (1) violation of Nevada's open meeting laws, (2) denial of due process, (3) abuse of discretion, and. (4) violation of N.R.S 278.220. After lengthy litigation spanning eight years, CMI. ultimately prevailed on a.1.i claims and filed a motion for attorney fees and costs. The district court granted the motion, awarding $201,580.00 in attorney fees and $1,571.47 in costs, totaling $203,151..47. CRA now appeals that SUPREME COURT OF NEVADA
OM 1947A q07- decision, contending that the district court erred in awarding attorney fees
under NRS 278.0237 and NRS 1.8.01.0, and arguing that even if CM! was
entitled to attorney fees, the district court erred because it failed to niake
any Brunzelll find.ings.
The district court erred in awarding attorney fees under NRS 278.0237(2) but did not err in awarding attorney fees under NRS 18.010(2)(b) "[A]ttorney[i fees are not recoverable absent a statute, rule or
contractual provision to the contrary." .Rowland v. Lepire, 99 Nev. 308, 315,
662 P.2d 1.332, :1336 (1983). When eligibility for an attorney fee award
depends on interpretation of a statute or court rule, the district court's
decision is reviewed de novo. Logan v. Abe, 1.31. Nev, 260, 264, 350 .P. 3d
1.1.39, 1.141. (201.5). .Here, we conclude that while the district court
erroneously awarded attorney fees to CMI. under NRS 278.0237(2), fees
were proper under NRS 18.01.0(2)(b).
NRS 278.0233(1.) allows "[aljny person who has any ri.ght, title
or interest in real. property," and who has filed a legally required application
for a permit, to sue the agency reviewing the application under certain.
circumstances. If that party prevails, then the court may award them
attorney fees under NRS 278.0237(2). CM.1 was not aggrieved by the decision and did not file suit, so the possibility of attorney fees under NRS
278.0237(2) was not available to it. MGM Mirage v. Nev. Ins. Guar. Ass'n,
125 Nev. 223, 228-29, 209 P.3d 766, 769 (2009) ("[W] hen the language of a
statute is plain and unambiguous . . . this court sh.ou.ld not construe that
1.Brunzell v. Golden Gate Nat'l .Bank, 85 Nev. 34.5, 349 4,55 P.2d 31., 33 (1969) (detailing factors tb.e district court shoul.d consider when awarding attorney fees). SUPREME COURT OF
NEVADA
, I44r5" 2 1.01 I947A statute otherwise."). Thus, the district court erred in awarding attorney
fees to CMI. under NRS 278.0237(2).
However, under NRS 1.8.010(2)(b), a district court may award
"attorney[ l fees to a prevailing party . . . [w]ithout regard to the recovery
sought, when the court finds that the claim . . . of the opposing party was
brought o.r mai.ntained without reasonable ground or to harass the
prevailing party." "Although a district court has discretion to award attorney fees under NRS 18.01.0(2)(b), there must be evidence supporting
the district court's finding that the claim or defense was unreasonable or
brought to harass." Frederic & Barbara Rosenberg Living Tr. v. MacDonald
Highlands Realty, LLC, 1.34 Nev. 570, 580-81., 4.27 P.3d 1.04., 1.13 (2018)
(quoting I3ower v. Harrah's Laughlin, Inc., 1.25 Nev. 470, 493, 215 P.3d 709,
726 (2009) modified on other grounds).
Here, all causes of action in CRA's complaint were only properly
pursued as to the Board, not CMI as none of the causes of acti.on are even
legally cognizable against CMI. The first cause of action fbr violation of
Nevada's open meeting laws could not have been brought against CMI, as it can only be brought against a public body. See NRS 241.01.6(1.) ("The
meeti.ngs of a public body . . . are subject to the provis:ions of this chapter.");
NRS 241.01.5(4)(a) (defining "public body," in part, as "[alny administrative,
advi.sory, executive or legislative body of the State or a local government
consisting of at least two persons which expends or disburses or is supported.
in whole or in part by tax revenue ."). The second cause of action. for
denial of due process likewise must be brought against the state. See U.S.
Const. ame.n.d. § 1 (providing that no state "shall... deprive any
person of life, liberty, or property, w.ithout due process °flaw"); Nev. Const.
art. 1., § 8 (same). The third cause of action for abuse of discretion also could
3 not have been brought against CMI, as the discretionary act was the Board's granting of CM.I's application. See Cty. of Clark v. Doumani, 114 Nev. 46, 53, 952 P.2d 1.3, 17 (1998) ("The grant or denial of a rezoning request i.s a discretionary act."), superseded. by statute on other grounds as stated in Scenic Nev., Inc. v. City of Reno, No. 80644, 2021. WIL 1978360 at *1. (Nev. May 17, 2021.) (Order of Affirmance). Finally, the fourth cause of action for violation of NRS 278.220 could not have been broug.h.t against CMI., because NRS 278.220 regulates the .Board or the "governing body." Because CRA did not have reasonable grounds to bring or maintain its claims against CM.1., we conclude that the distri.ct court properly determined CM1., as the prevailing party, was entitled to attorney fees under NRS 18.010(2)(b). The district court abused its discretion in failing to make sufficient findings regarding the Brunzell factors "We review an award of attorney fees for an abuse of discretion." Logan, 131 Nev. at 266, 350 P.3d at 1143. While the failure to make explicit findin.gs as to the .Brunzell factors is not a per se abuse of discretion, "the district court [must" demonstrate that it considered the requi.red factors, and the award must be supported by substantial evidence." ME.1-GSR Holdings, LLC v. Peppermill Casinos, Inc., 1.34 Nev. 235, 245, 416 .P.3d 249, 258-59 (2018) (quoti.ng Logan, 1.31 Nev. at 266, 350 P.3d at 1143)). .H.ere, although the district court stated that it considered the Brunzell factors, it failed to make any explicit findings. Further, a review of the record demonstrates only general and conclusory affidavits supporting CM.I.'s request for attorney fees. Because we are unable to discern whether the award of attorney fees was supported by substantial evidence, we reverse that portion of the district court's order and remand for the district court to conduct further Brunzell analysis. Accordingly, we SUPREME COURT OF NEVADA
4 10) 1947A ORDER the judgment of the district court AFFIRMED IN PART, REVERSED IN PART, AND REMAND this matter to the district court for proceedings consistent with this order.
J. :Hardesty
Stiglich
:Herndon
cc: Chief judge, The Third Judicial District Court Hon. Robert E. Estes, Senior judge Leonard Law, :PC john L. Marshall Allison MacKenzie, Ltd. Lyon County :District Attorney Third :District Court Clerk
SUPREME COURT OF NEVADA
5 r01 I947A