ZORIKOVA v. PYLE (2023)

ORDER OF AFFIRMANCE

Zorikova brought the underlying action against respondent Vegas Shephard Rescue and its founders, respondents Tammy Willet and Julie Pyle (collectively defendants). The defendants later filed a motion to dismiss her complaint for lack of service of process. Following an evidentiary hearing, the court dismissed Zorikova's complaint for failure to complete service of process on the defendants and also specified that it was dismissing the complaint with prejudice as a sanction for abusing the judicial process, presenting false and misleading testimony, and preparing and filing false and misleading documents with the court. Zorikova appealed that decision and this court affirmed. See Zorikova v. Pyle, No. 83478-COA, 2022 WL 3755877 (Nev. Ct. App. Aug. 26, 2022) (Order of Affirmance). After filing her appeal, Zorikova filed a motion to set aside the district court's order, which the district court denied.¹

In the underlying proceedings, defendants filed two applications for attorney fees and costs. The first, related to the litigation surrounding the motion to dismiss, requested $37,400 in attorney fees and $1,485 in costs. The second, in response to a motion to set aside filed by Zorikova, requested $8,850 in fees and $14.30 in costs. After full briefing and a hearing on the applications, the district court considered the factors set forth in Brunzell v. Golden Gate National Bank, 85 Nev. 345, 455 P.2d 31 (1969), and determined that attorney fees were warranted in this matter both under NRS 18.010 because defendants were the prevailing parties and as a sanction for Zorikova's frivolous filings and abusive litigation practices. However, the district court found that some of the defendants' attorneys' billing entries were excessive and reduced the amount of attorney fees awarded accordingly. Thus, on the first fee application, the district court awarded $10,217 in attorney fees and $1,485 in costs. And on the second fee application, the court entered a separate order and awarded defendants $6,720 in attorney fees and $14.30 in costs. Zorikova now appeals both decisions.

The decision to award attorney fees rests within the district court's discretion, and we review such decisions for an abuse of that discretion.² O'Connell v. Wynn Las Vegas, LLC, 134 Nev. 550, 554, 429 P.3d 664, 668 (Ct. App. 2018).

Having considered Zorikova's filings and the record on appeal, we conclude that the district court did not abuse its discretion when it awarded attorney fees to defendants. As an initial matter, to the extent that the attorney fees award was a sanction based on NRCP 11 and the court's inherent authority, Zorikova has failed to challenge these portions of the district court's orders, thus waiving any argument related to these issues. See Powell v. Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011) (providing that issues not raised on appeal are deemed waived).³

And with regard to the propriety of the award, a review of the record demonstrates that the district court properly considered and made findings regarding each of the Brunzell factors, determining that each factor supported the award of attorney fees. Additionally, the district court made findings indicating that Zorikova maintained her claims without following the required service of process rules, and indeed filed falsified documents to support these claims, warranting sanctions under NRS 18.010(2)(b) (permitting an award of attorney fees “without regard to the recovery sought” when the claim was “maintained without reasonable ground”). Finally, we conclude that the award is supported by substantial evidence in the record. As a result, we conclude the district court did not abuse its discretion in awarding attorney fees to the defendants. See Logan v. Abe, 131 Nev. 260, 266-67, 350 P.3d 1139, 1143 (2015) (affirming an award of attorney fees where the district court properly considered each of the Brunzell factors and its award was supported by substantial evidence in the record).

Accordingly, for the reasons set forth above, we affirm the district court's orders awarding fees and costs to the defendants.

It is so ORDERED.⁴

FOOTNOTES

1.   The district court denied this motion prior to our resolution of the appeal in Docket No. 83478-COA. See NRAP 4(a)(6).

2.   The district court awarded defendants their costs in full as Zorikova failed to challenge them below. And under these circumstances, the cost awards are necessarily affirmed. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) (“A point not urged in the trial court, unless it goes to the jurisdiction of that court, is deemed to have been waived and will not be considered on appeal.”).

3.   Nonetheless, we note that the district court had discretion to award fees on either of those grounds. See Chambers v. NASCO, Inc., 501 U.S. 32, 45 (1991) (recognizing that sanctions assessing attorney fees are “undoubtedly within a court's inherent power”); see also NRCP 11(c)(4) (permitting the district court to award “part or all of the reasonable attorney fees and other expenses directly resulting from the violation” to the prevailing party).

4.   Insofar as appellant raises arguments that are not specifically addressed in this order, we have considered the same and conclude that they either do not present a basis for relief or need not be reached given the disposition of this appeal.