                                                    131 Nev., Advance Opinion   12.
                          IN THE SUPREME COURT OF THE STATE OF NEVADA


                 ADAM J. BREEDEN; AND BREEDEN &                        No. 66876
                 ASSOCIATES, A LEGAL
                 PROFESSIONAL LIMITED LIABILITY
                 COMPANY,                                                   FILED
                 Petitioners,
                 vs.                                                        MAR U 5 2015
                 THE EIGHTH JUDICIAL DISTRICT
                 COURT OF THE STATE OF NEVADA,
                 IN AND FOR THE COUNTY OF
                 CLARK; AND THE HONORABLE
                 NANCY L. ALLF, DISTRICT JUDGE,
                 Respondents,
                 and
                 ELVIA GONZALEZ,
                 Real Party in Interest.



                             Motion to voluntarily dismiss an original petition for
                 extraordinary writ relief from a district court order adjudicating attorney
                 liens.
                             Motion granted; petition dismissed.

                 Breeden & Associates and Adam J. Breeden, Las Vegas,
                 for Petitioners.

                 Law Offices of David J. Churchill and David J. Churchill and Jolene J.
                 Manke, Las Vegas,
                 for Real Party in Interest.




                 BEFORE SAITTA, GIBBONS and PICKERING, JJ.



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                                                  OPINION
                By the Court, PICKERING, J.:
                             Rule 42(b) of the Nevada Rules of Appellate Procedure
                provides that, "An appeal may be dismissed on the appellant's motion on
                terms agreed to by the parties or fixed by the court." We consider whether
                this rule authorizes the imposition of attorney fees on a party who seeks to
                voluntarily dismiss a nonfrivolous writ petition after an answer has been
                filed. We conclude that it does not and thus grant the petitioners' motion
                to dismiss without requiring, as a condition of the dismissal, payment of
                the other side's attorney fees.
                            Attorney Adam J. Breeden and his law firm Breeden &
                Associates (Breeden) filed a petition in this court for extraordinary writ
                relief, challenging a district court order adjudicating attorney liens and
                distributing settlement funds in a personal injury action. The real party
                in interest, Elvia Gonzalez, is Breeden's former client. As ordered,
                Gonzalez filed an answer to Breeden's writ petition. Breeden also has a
                separate contract action underway against Gonzalez and others, seeking
                to enforce an alleged fee-sharing agreement.
                            After receiving Gonzalez's answer, Breeden decided it was
                more prudent to pursue the contract action than writ relief and moved to
                dismiss the writ petition under NRAP 42(b). Gonzalez opposes the motion.
                She asks that we resolve the petition on the merits but, if we do not, that
                we require Breeden to pay her costs and attorney fees.
                            A lawyer seeking to recover fees may proceed by separate
                contract action or by lien proceeding, depending on circumstances. For
                this reason, among others, we decline to perpetuate this undecided writ
                proceeding if Breeden wishes to abandon it in favor of his currently stayed
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                contract action. The question remains, though, whether we may condition
                the dismissal on Breeden repaying Gonzalez for the costs and attorney
                fees she incurred defending this now-abandoned writ petition.
                            NRAP 42(b) draws its language from Rule 42(b) of the Federal
                Rules of Appellate Procedure Almost without exception, federal courts
                have rejected the argument that, in allowing voluntary dismissal "on
                terms .. . fixed by the court," federal Rule 42(b) authorizes an award of
                attorney fees against the party moving to dismiss       See, e.g., Am. Auto.
                Mfrs. Ass'n v. Comm'r, Mass. Dep't of Envtl. Prot., 31 F.3d 18, 28 (1st Cir.
                1994); Waldrop v. U.S. Dep't of Air Force, 688 F.2d 36, 37 (7th Cir. 1982).
                Like NRAP 38, Rule 38 of the Federal Rules of Appellate Procedure
                authorizes fee-shifting but limits the authorization to frivolous filings.
                Normally, courts encourage rather than discourage voluntary, self-
                determined case resolutions. It does not make sense to penalize a party
                who voluntarily dismisses a nonfrivolous appeal when, under Rule 38, the
                same party with the same nonfrivolous appeal would not have to pay the
                other side's fees if he or she stayed with the appeal to the bitter end.
                Waldrop, 688 F.2d at 38 ("No appellant, unless his appeal was frivolous,
                would move to dismiss it if he thought that by doing so he was making
                himself liable to pay the appellee's attorney's fees."). We therefore hold
                that NRAP 42(b) does not "provide fl authority for routine awards of
                attorney[] fees as a condition of voluntary dismissal," but that attorney
                fees may be awarded under NRAP 38 if an appeal or writ proceeding is
                frivolous.' Am. Auto. Mfrs, Ass'n, 31 F.3d at 28; see In re Vincent, 105 F.3d


                      'Waldrop and American Automobile Manufacturers Ass'n apply
                federal Rule 42(b) to appeals, not writ proceedings. While the second
                sentence of NRAP 42(b) states that "an appeal may be dismissed on the
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                   943, 945 (4th Cir. 1997) (applying Fed. R. App. P. 38 when considering
                   whether to award attorney fees for a frivolous writ petition); Liberty Mitt.
                   Ins. Co. v. Ward Trucking Corp., 48 F.3d 742, 751 (3d Cir. 1995) (same).
                   The petition in this case was not frivolous, so we deny Gonzalez's request
                   for attorney fees. NRAP 38(b).
                               But costs, as distinguished from fees, are "routinely available"
                   when an appellant voluntarily dismisses an appeal.         Am. Auto. Mfrs,
                   Ass'n, 31 F.3d at 28. In the context of a federal writ petition, an original
                   proceeding, federal courts have awarded costs under Rule 54(d)(1) of the
                   Federal Rules of Civil Procedure. E.g., Cotter v. Inter-County Orthopaedic
                   Ass'n, P.A., 530 F.2d 536, 538 (3d Cir. 1976) (awarding costs to a
                   successful petitioner); see also Ariz. v. U.S. Dist. Court, 709 F.2d 521, 523
                   (9th Cir. 1983) (agreeing with Cotler and awarding costs to a real party in
                   interest after dismissing the petition). The Nevada Rules of Civil
                   Procedure, however, do not contain a counterpart to federal Rule 54(d)(1),
                   and NRS Chapter 18, which permits cost awards in Nevada district courts,
                   is not well-suited to awarding costs in an appellate court. Appellate costs
                   are allowable as of right in the context of the voluntary dismissal of an




                   ...continued
                   appellant's motion," (emphasis added), the first sentence of NRAP 42(b)
                   refers to the voluntary dismissal of "an appeal or other proceeding," and
                   NRAP 1(e)(1) indicates that "appellant" and "petitioner" are
                   interchangeable in the NRAP where appropriate. For this and the policy
                   reason of not penalizing voluntary dismissals of nonfrivolous petitions or
                   appeals, we apply NRAP 1(e)(1) to the second sentence of NRAP 42(b) and
                   hold that the entirety of NRAP 42(b) governs voluntary dismissals of writ
                   petitions as well as appeals.

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                      appeal or original writ proceeding but only as provided by NRAP 39.
                      NRAP 39(c)(3) requires the party seeking costs to file a bill of costs with
                      this court, which Gonzalez has not done. We therefore deny Gonzalez's
                      countermotion for costs without prejudice to her right to seek allowable
                      costs via a bill of costs under NRAP 39. The motions for leave to file a
                      reply in support of the motion to dismiss and a reply in support of the
                      petition are denied. The clerk of this court shall reject the reply to the
                      petition received via E-Flex on January 29, 2015.




                                                                          gektitis
                                                                 Pickering


                      We concur:




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