{Converted to html. The PDF is the controlling document. JM}
IN THE SUPREME COURT OF THE STATE OF
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REZA ZANDIAN A/K/A GOLAMREZA ZANDIANJAZI A/K/A GHOLAM REZA ZANDIAN A/K/A REZA JAZI A/K/A J. REZA JAZI A/K/A G. REZA JAZI A/K/A GHONOREZA ZANDIAN JAZI, AN INDIVIDUAL, Appellant,
VS.
JED MARGOLIN, AN INDIVIDUAL, Respondent.
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Supreme Court Case No. 65960
Electronically Filed Mar 06 2015 08:37 a.m. Tracie K. Lindeman Clerk of Supreme Court
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APPEAL
FROM THE FIRST JUDICIAL DISTRICT OF THE STATE OF
IN AND FOR
THE HONORABLE JAMES. T. RUSSEL, DISTRICT JUDGE
APPELLANT'S REPLY BRIEF
SEVERIN A. CARLSON
Nevada Bar No. 9373
KAEMPFER CROWELL
( 775) 852-3900
Attorneys for Appellant, Reza Zandian
TABLE OF CONTENTS
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TABLE OF AUTHORITIES |
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APPELLANT'S REPLY |
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ARGUMENT |
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II MARGOLIN Has Never Sought Attorney's Fees Pursuant to NRS 41.600 and Has Therefore Waived Any Claim for Fees Under That Statute |
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II. The District Court Abused its Discretion in Authorizing Specialized Fee Rates for Routine Legal Work |
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CONCLUSION |
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CERTIFICATE OF COMPLIANCE |
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CERTIFICATE OF SERVICE |
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page i
TABLE OF AUTHORITIES
Cases
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Bobby Berosini, 114 |
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6 |
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Brunzell v. Golden Gate Nat'l Bank, 85 |
9-10 |
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Calloway v. City of |
6 |
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Charlie Brown Constr. Co. v. |
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Dearden v. Galli, 71 |
3 |
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3 |
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Gibellini v. Klindt, 110 |
2 |
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Horgan v. Felton, 123 |
2 |
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Miller v, Kehoe, 107 |
3 |
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Montesano v, Donrey Media Group, 99 |
9 |
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Mooney v. |
3 |
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page ii
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Page(s) |
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Rowland v. Lepire, 99 |
2 |
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Smith v. Crown Fin. Servs., 111 |
2 |
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Sun Realty v. |
3 |
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Tupper v. Kroc, 88 |
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Statutes
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NRAP 28(c) |
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NRS 41.600 |
8-9 |
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NRS 598 |
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NRS 598.0903 to 598.0999 |
3-4, 6 |
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NRS 598.096 |
4 |
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NRS 598.0963 |
4 |
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NRS 598.0974 |
3 |
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NRS 598.0975 |
6-7 |
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NRS 598.0975(1) |
6 |
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NRS 598.0975((1)(a) |
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Page iii
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Page(s) |
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NRS 598.0983 |
4 |
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NRS 598.0985 |
4 |
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NRS 598.0999 |
2-7, 9 |
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NRS 598.0999(2) |
1, 3-5 |
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Other
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1. Stuart M. Speiser Attorneys' Fees § 12:3 at 463-64 (1973) |
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2001 Stat. of |
2 |
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Senate Bill 488, (77th (2013) Session of the |
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APPELLANT'S REPLY BRIEF
COMES NOW Appellant REZA ZANDIAN ("ZANDIAN"), by and through his attorneys KAEMPFER CROWELL, and hereby submits his reply to the Respondent's Answering Brief ("Answering Brief”) filed January 20, 2015, with this Court.[1] ZANDIAN hereby requests that this Court reverse the Order on Motion for Order Allowing Costs and Necessary Disbursements and Memorandum of Points and Authorities in Support Thereof (the "Order”) issued May 19, 2014, by the District Court in this case below.
ARGUMENT
MARGOLIN'S contention that NRS 598.0999(2) should be
liberally construed[2] is inconsistent with
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[1] A reply brief "must be limited to answering any new matter set forth in the opposing brief." NRAP 28(c). Accordingly, only those arguments which were not addressed in Appellant's Opening Brief are addressed herein.
[2] See Answering Brief at 6:11-17. Respondent's application of a mechanic's lien jurisprudence, including reliance upon a California Court of Appeals case, does not justify overriding this Court's consistent decision to apply the American Rule absent an express contractual or statutory exception.
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jurisprudence concerning awards of attorneys' fees. Nevada generally follows the "American Rule" which requires that litigants bear their own attorney's fees.[3] The only exception to application of the American Rule in Nevada occurs when a contract, statute or court rule authorizes an award of attorney's fees.[4] However, because these exceptions are in "derogation of common law," they are "strictly construed" (emphasis added).[5] Strict construction of exceptions to the American Rule do not allow for a liberal construction of NRS 598.0999 as requested by MARGOLIN. In fact, deviations from
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[3] See Smith v. Crown Fin. Servs., 111 Nev. 277, 281, 890 P.2d 769, 771-72 ("`It has been a consistent rule throughout the United States that a litigant has no inherent right to have his attorney's fees paid by his opponent or opponents. Such an item is not recoverable in the ordinary case as damages, nor as costs, and hence is held not allowable in the absence of some provision for its allowance either in a statute or rule of court, or some contractual provision or stipulation. This sweeping general rule has been applied in legions of cases to preclude recovery of attorney's fees, whether by the plaintiff or by the defendant, from one's opponent in a civil action."' (Quoting 1 Stuart M. Speiser, Attorneys'Fees § 12:3 at 463-64 (1973)).
[4] See Horgan v. Felton,
123
[5] Bobby Berosini,
114
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the American Rule are justified only by an “express” statutory provision which establishes the exception in "plain terms."[7]
MARGOLIN further claims that ZANDIAN'S argument that NRS 598.0999(2) does not permit an award of attorney's fees because it is limited to an action brought by the District Attorney or Attorney General is clearly erroneous.[8] A plain reading of NRS 598.0999(2) establishes a conclusion to the contrary. NRS 598.0999 provides:
Civil and criminal penalties for violations.
....
2. Except as otherwise provided in NRS 598.0974, in any action brought pursuant to the provisions of NRS 598.0903 to 598.0999, inclusive, if the court finds that a person has willfully engaged in a deceptive trade practice, the district attorney of any county in this State or the
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[6] See Sun Realty v.
Dist. Ct., 91
[7] Dixon v. Second Judicial Dist. Ct., 44 Nev. 98, 101, 190 P. 352, 353 (1920) ("The general rule is that counsel fees are not recoverable by a successful party either in an action at law or in equity except in the enumerated instances where they are expressly allowed by a statute.... And in the absence of a statute authorizing it in plain terms, no such fee can be taxed on appeal." (Citing Mooney v. Newton, 43 Nev. 441,187 P. 721; Miller v. Kehoe, 107 Cal. 340, 40 P. 485)).
[8] See Answering Brief at 8:4-6.
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Attorney General bringing the action may recover a civil penalty not to exceed $5,000 for each violation. The court in any such action may, in addition to any other relief or reimbursement, award reasonable attorney's fees and costs.[9]
This provision does not support the District Court's ruling awarding MARGOLIN post-judgment attorney's fees, nor does it support MARGOLIN'S claim in his Answering Brief.
NRS 598.0999(2) is only triggered
by actions "brought pursuant to NRS 598.0903-598.0999."[10]
Those provisions authorize the commencement of an action by the Nevada
Attorney General[11] and
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[9] NRS 598.0999(2).
[10]
[11] See NRS 598.096; NRS 598.0963
[12] See NRS 598.0983; NRS 598.0985
[13] See 2001 Stat. of Nev. 482.
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When the statute was amended in 2013, the Nevada Legislature expanded the authorization beyond district attorneys and the Attorney General to also include the Commissioner of Consumer Affairs and the Director of the Department of Business and Industry.[14] That amendment, however, did not authorize a private cause of action either.
Even if the statute is deemed to authorize private causes of action, the plain unambiguous language of NRS 598.0999(2) restricts an award of attorney's fees to only those actions brought by the Attorney General or a District Attorney. The statute provides that the Attorney General or District Attorney "may recover a civil penalty" up to $5,000 for a deceptive trade practice.[15] Then the final sentence of NRS 598.0999 goes on to state, "The court in any such action may, in addition to any other relief or reimbursement, award reasonable attorney's fees and costs."[16] The language "any such action" clearly refers
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[14] See Senate Bill 488 (77th (2013) Session of the Nevada Legislature). The referenced amendment does not go into effect until July 1, 2015.
[15] NRS 598.0999(2).
[16] See id. (emphasis added).
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to the preceding sentence which addresses the recovery of a civil penalty by the Attorney General or district attorney. To read the language otherwise renders the words "in any such action" superfluous and removes all meaning provided by the context. Nevada law rejects such an interpretation.[17]
This clear point becomes unmistakable when the provision at issue is considered in conjunction with NRS 598.0975. That statute directs the disposition of "all fees, civil penalties and any other money collected pursuant to the provisions of NRS 598.0903 to 598.0999, inclusive.[18] Money collected by actions initiated by the Attorney General are to be deposited into the State General Fund[19], while money collected in an action initiated by a district attorney are deposited with
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[17] Butler v. State, 120 Nev. 879, 892-93, 102 P.3d 71 (2004) ("Statutes should be given their plain meaning and 'must be construed as a whole and not be read in a way that would render words or phrases superfluous or make a provision nugatory. Further, every word, phrase, and provision of a statute is presumed to have meaning." (footnote omitted) (quoting Charlie Brown Constr. Co. v. Boulder City, 106 Nev. 497, 503, 797 P.2d 946 (1990); overruled on other grounds, Calloway v. City of Reno, 116 Nev. 250, 993 P.2d 1259 (2000)).
[18] NRS 598.0975(l) (emphasis added).
[19] See NRS 598.0975(1)(a).
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the county treasurer.[20] The only exceptions to the required disposition of funds collected pursuant to NRS 598.0999 are: (1) criminal fines[21] and (2) "restitution". [22] The first category, criminal fines, is not at issue in this appeal. As to the second, NRS 598.0975 directs:
Money collected for restitution ordered in such an action must be deposited by the Attorney General and credited to the appropriate account of the Attorney General for distribution to the person for whom the restitution was ordered.[23]
NRS 598.0975 comprehensively addresses money collected pursuant to NRS 598.0999 and directs the disposition of that money. And there is no category of money which flows directly from a judgment debtor, such as ZANDIAN, to a judgment creditor, such as MARGOLIN.
This conclusively establishes that NRS 598.0999 does not provide authorization for an award of attorney's fees in a private cause of action.
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[20] See NRS 598.0975(1)(b).
[21] Presumably, such fines are disbursed in the same manner as other criminal fines.
[22] NRS 598.0975(3)(b).
[23] Id.
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Finally, even if it was applicable to MARGOLIN’s claim in general, the provision does not apply to post-judgment attorney's fees which the Motion requested and the Order granted. Nothing in the language of the provision expresses or implies that it authorizes any award subsequent to a judicial adjudication that there has been a violation of Chapter 598 of Nevada Revised Statutes.
II. MARGOLIN has Never Sought Attorney's Fees Pursuant to NRS 41.600 and has Therefore Waived Any Claim for Fees Under that Statute.
The record on appeal contains no reference to NRS 41.600 because: (1) MARGOLIN never sought an award of attorney's fees pursuant to NRS 41.600 before the District Court[24] and (2) the District Court never based its award of attorney's fees to MARGOLIN upon NRS 41.600, let alone referenced NRS 41.600 in its Order granting the award of post-
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[24] See Complaint, J.A. at Vol. I, 1-10; Amended Complaint, J.A. at Vol. 1, 11-18; see also Motion, J.A. Vol. III, 411-418; Declaration of Adam McMillen in Support of Plaintiffs Motion, J.A. Vol. III, 419- 494; Reply in Support of Motion, J.A. at Vol. IV, 506-512; Declaration of Adam McMillen in Support of Reply in Support of Plaintiff's Motion, J.A. at Vol. IV, 513-533.
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judgment attorney's fees.[25] MARGOLIN, now for the first time, and with no prior notice to ZANDIAN, seeks to apply NRS 41.600 as a basis for an award of attorney's fees. As this Court is well aware, arguments raised for the first time on appeal need not be considered.[26] As such, MARGOLIN's new attempt to seek attorney's fees pursuant to NRS 41.600 should be disregarded by this Court.
III. The District Court Abused its Discretion in Authorizing Specialized Fee Rates for Routine Legal Work.[27]
The District Court enjoys discretion in determining the amount of a reasonable fee award when such an award is authorized by law. But that discretion is not without restraint. Brunzell v. Golden Gate Nat'l Bank[28] established the framework by which fees are to be evaluated. That Brunzell framework
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[25] See Order on Motion, J.A. at Vol. IV, 549-558.
[26] Montesano v. Donrey Media Group, 99 Nev. 644, 650 n. 5, 668 P.2d 1081, 185 N. 5 (1983); Tupper v. Kroc, 88 Nev. 146, 149, 494 P.2d 1275, 1278 (1972).
[27] If the Court determines that NRS 598.0999 or NRS 41.600 do not support the District Court's award in the Order, the issue addressed in this Section III is rendered moot and need not be reviewed.
[28] 85 Nev. 345, 455 P.2d 31 (1969).
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involves consideration of several factors in determining the reasonable value of legal services.[29] One factor, the most pertinent in this case, requires the District Court to consider "the character of the work to be done: its difficulty, its intricacy, its importance, time and skill required ..... [30]
Most of the legal work during the timeframe addressed in the Motion was completed by two attorneys for MARGOLIN, both of whom charged $300 per hour.[31] MARGOLIN claimed that this elevated hourly rate was necessary due to counsels' experience and specialized skills in regard to "patent and deceptive trade practices litigation" which is a "niche practice that requires a high degree of legal skill and care in order to be performed properly and effectively."[32] Noting that "the customary fee charged by attorneys with our experience for similar patent and deceptive trade practices matters in Nevada
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[29] See Brunzell, 85 Nev. at 349-50, 455 P.2d at 33-34.
[30] Brunzell, 85 Nev. at 349, 455 at 33 (emphasis in original).
[31] See J.A. Vol. IV at 553 ("The amount of attorney's fees awarded only includes reasonable attorney's fees from October 18, 2013 to April 18, 2014, as follows: 11.4 hours of work performed by [Attorney 1] at $300 per-hour ($3,420.00); [and] 75.3 hours of work performed by [Attorney 2] at $300 per-hour ($22,590.00).")
[32] J.A. at Vol. III, 416, 419-23.
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ranges between $275-$450 per-hour," MARGOLIN's counsel argued that the $300 hourly fee was an appropriate rate for the work performed from October 18, 2013 through April 18, 2014.[33]
While it may very well be the case that an attorney experienced and specialized in patent and intellectual trade practice issues justifies a rate of $300 per hour, that rate is not consistent with the work at issue here. The work of MARGOLIN's counsel from October 2013 to April 2014 involved collection efforts toward satisfaction of the Default Judgment and oppositions to ZANDIAN's efforts to set aside and stay the Default Judgment.[34] This work does not implicate any need for a legal specialist. While MARGOLIN has every right to employ and pay for the services of whomever he wishes to perform work related to his case, the fees for the post-judgment work performed are not reasonable and the
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[33] J.A. at Vol. III, 420.
[34] See J.A. at Vol. I, 44 - Vol. IIII, 410; Docket Sheet at 3-4 (Nov. 5, 2014) Zandian v. Margolin, Nevada Supreme Court Case No. 65960).
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District Court should have reduced the rate to reflect the nonspecialized rate of a general practitioner.
For this reason, the District Court abused its discretion in applying a rate of $300 per hour for the attorneys involved in this case, and the Order should be reversed and remanded on that basis.
CONCLUSION
ZANDIAN respectfully requests that this Court reverse the District Court's Order on Motion for Order Allowing Costs and Necessary Disbursements and Memorandum of Points and Authorities in Support Thereof, and remand this matter to the District Court for further proceedings consistent with this ruling.
DATED this 5th day of March, 2015.
KAEMPFER CROWELL
BY: _________________
SEVERIN A. CARLSON
Nevada Bar No. 9373
50 West Liberty Street, Suite 700
Reno, Nevada 89501
Attorneys for Appellant
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CERTIFICATE OF COMPLIANCE
1. I hereby certify that this brief complies with the formatting requirements of NRAP 32(a)(4), the typeface requirements of NRAP 32(a)(5) and the type style requirements of NRAP 32(a)(6) because:
[X] This brief has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in 14 point Bookman Old Style font; or
[ ] This brief has been prepared in a monospaced typeface using [state name and version of word processing program] with [state number of characters per inch and name of type style].
2. 1 further certify that this brief complies with the page or type-volume limitations of NRAP 32(a)(7) because, excluding the parts of the brief exempted by NRAP 32(a)(7)(c), it is either:
[X] Proportionally spaced, has a typeface of 14 points or more and contains 2,357 words; or
[ ] Monospaced, has 10.5 fewer characters per inch, and contains ___ words or ____ lines of text; or
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[ ] Does not exceed ____ pages.
3. Finally, I hereby certify that I have read this appellate brief, and to the best of my knowledge, information and belief, it is not frivolous or interposed for any improper purpose. I further certify that this brief complies with all applicable Nevada Rules of Appellate Procedure, in particular NRAP 28(e)(1), which requires every assertion in the brief regarding matters in the record to be supported by a reference to the page and volume number, if any, of the transcript or appendix where the matter relied on is to be found. I understand that I may be subject to sanctions in the event that the accompanying brief is not in conformity with the requirements of the Nevada Rules of Appellate Procedure.
DATED this 5th day of March, 2015.
KAEMPFER CROWELL
SEVERIN A. CARLSON (NBN 9373)
50 West Liberty Street, Suite 700
Reno, Nevada 89501
(775) 852-3900
Attorneys for Appellant
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CERTIFICATE OF SERVICE
Pursuant to NRAP 25(1), I declare that I am an employee of Kaempfer Crowell and that on this 5th day of March, 2015, I filed the foregoing Appellant's Reply Brief through the Nevada Supreme Court's CM/ECF electronic filing program which will send notification to the following:
Adam P. McMillen
WATSON ROUNDS
5371 Kietzke Lane
Reno, Nevada 89511
____________________________
an employee of Kaempfer Crowell
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