The Lawletter Vol 40 No 9
For a prevailing party in a civil lawsuit to obtain attorney's fees, he or she must file a motion requesting fees by a statutory deadline. Problematically, however, many state statutes do not specify whether this deadline is tolled by the filing of a postjudgment motion. As a result, counsel may be placed in the awkward position of deciding whether to move for attorney's fees while the losing party's postjudgment motion is pending before the court.
The effect of a postjudgment motion on the time in which a prevailing party must move for attorney's fees was recently addressed in Barbara Ann Hollier Trust v. Shack, Nos. 63308, 64047, 2015 WL 4656697 (Nev. Aug. 6, 2015). There, the court noted that Rule 54(d) of the Nevada Rules of Civil Procedure requires a prevailing party to move for attorney's fees within 20 days after service of notice of entry of judgment. However, in the case before the court, the losing party filed a motion for judgment notwithstanding the verdict or, alternatively, for a new trial before the prevailing party moved for attorney's fees. The prevailing party did not file any motion for attorney's fees until after the court denied the losing party's postjudgment motions.
The losing party objected to the attorney's fee motion on the ground that Rule 54 requires a prevailing party to move for attorney's fees within 20 days after the entry of judgment without exception. Because the prevailing party waited until after the court ruled on the postjudgment motions, the losing party contended that the prevailing party's motion for attorney's fees was untimely.
The Nevada Supreme Court disagreed. In so doing, the court ruled that the filing of a postjudgment motion that tolls the time to appeal also serves to toll Rule 54's 20-day deadline to move for attorney's fees. In reaching this conclusion, the court recognized that the express terms of Rule 54 do "not reveal whether tolling is allowed or prohibited." Id. at *4. As a result, the court looked to "reason and public policy" to determine whether or not tolling should apply. Id.
Because Nevada's Rule 54 is modeled after the corresponding Federal Rule of Civil Procedure, the court looked to federal case law. In this regard, the Ninth Circuit ruled that posttrial motions "suspend the finality of a district court's judgment, for appellate purposes, because the judgment [is] not appealable during the pendency of the post-trial motions." Bailey v. County of Riverside, 414 F.3d 1023, 1025 (9th Cir. 2005). "This same reasoning has been implemented by the United States Courts of Appeals for the Second, Sixth, and Eleventh Circuits." Barbara Ann Hollier Trust, 2015 WL 4656697, at *5; see Miltimore Sales v. Int'l Rectifier, Inc., 2005 FED App. 0276P, 412 F.3d 685, 688 (6th Cir.); Members First Fed. Credit Union v. Members First Credit Union of Fla., 244 F.3d 806, 807 (11th Cir. 2001); Weyant v. Okst, 198 F.3d 311, 314-15 (2d Cir. 1999).
Under Nevada law, a final judgment must dispose of all issues in the case except for postjudgment issues such as attorney's fees. This suggests that the filing of a postjudgment motion precludes entry of a final judgment and thereby serves to toll the time for the filing of a motion for attorney's fees.
Moreover, the court found that Nevada has an interest in promoting judicial economy by preventing piecemeal appellate review. The tolling of the time in which a prevailing party must move for attorney's fees during the pendency of a postjudgment motion serves to further this public policy. Hence, the court concluded that a Rule 54 motion for attorney's fees "is timely if filed no later than 20 days after the resolution of a postjudgment tolling motion." Barbara Ann Hollier Trust, 2015 WL 4656697, at *6 (footnote omitted).
As the foregoing analysis shows, the prevailing party in a civil action should have the right to wait until the trial court has resolved all postjudgment motions that serve to toll the time within which an appeal must be taken before filing a motion for attorney's fees. In this way, the prevailing party may avoid being placed in the discomfiting position of moving for attorney's fees before all other issues in the case have been resolved.