Brady v. Miller

court awarded $3,000 of Brady's requested $27,825 in attorney fees based upon NSTR 27(b)(4). Brady appealed. Brady argues that the NSTR 27(b)(4) cap on attorney fees is unconstitutional and violates this court's rule-making powers under NRS 2.120(1). 1 We review an award of attorney fees for an abuse of discretion, except where attorney fees issues implicate questions of law, which this court reviews de novo. Thomas v. City of N. Las Vegas, 122 Nev. 82, 90, 127 P.3d 1057, 1063 (2006). Constitutional issues are questions of law reviewed de novo. Nevadans for Nev. v. Beers, 122 Nev. 930, 939, 142 P.3d 339, 345 (2006). A threshold issue that must be addressed is whether Brady waived any argument that NSTR 27(b)(4) is unconstitutional by failing to opt out of the short trial program. "Waiver requires the intentional relinquishment of a known right." Nev. Yellow Cab Corp. v. Eighth Judicial Dist. Court, 123 Nev. 44, 49, 152 P.3d 737, 740 (2007). The required intent may be inferred from conduct that is "so inconsistent with an intent to enforce the right" that it is reasonable to believe that the party has relinquished the right. Id. Here, NSTR 4(a)(1) provides that participation in the short trial program is mandatory after court-annexed arbitration. NSTR 5(a)(1),

'Although not briefed by either party, the parties' arguments implicate separation of powers. As we have clarified, NRS 2.120(2) is a "legislative recognition" of this court's inherent rule-making powers, not an unconstitutional limit on them. Berkson v. LePome, 126 Nev. 492, 499, 245 P.3d 560, 565 (2010); State v. Second Judicial Dist. Court, 116 Nev. 953, 961, 11 P.3d 1209, 1214 (2000). Therefore, the issue that appellant seeks to raise in this appeal is not whether NSTR 27(b)(4) violates NRS 2.120(2), but whether this court exceeded its inherent rule-making powers under the Nevada Constitution when it promulgated NSTR 27(b)(4).

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however, provides that any party may remove a case from the short trial program by filing a demand for such removal within 10 days of service of a request for a trial de novo. After 10 days, a party may still make a motion to remove the case from the short trial program, which may be granted for good cause. NSTR 5(a)(1). Here, it is undisputed that Brady did not request that this matter be removed from the short trial program. This conduct is inconsistent with the intent to seek full attorney fees, see Nev. Yellow Cab Corp., 123 Nev. at 49, 152 P.3d at 740, and we therefore hold that Brady waived any right to seek an award of attorney fees under NSTR 27(b) greater than NSTR 27(b)(4)'s cap. 2 Accordingly, we ORDER the judg o of the district court AFFIRMED.

1 Saitta

, J. , J.

cc: Hon. Adriana Escobar, District Judge Hon. Blair C. Parker, Judge Pro Tempore Law Office of David Sampson Upson Smith/Las Vegas Eighth District Court Clerk

Footnotes

[2] l3ased on NSTR 5(a)(1)'s removal provisions, we reject Brady's argument that Farmers may, with impunity, always request a trial de novo after arbitration and only be subject to the short trial program attorney fee rules. Other avenues are also available for an award of attorney fees in the short trial program when faced with vexatious litigants, frivolous arguments or defenses, or harassment. See NRCP 11 (providing for sanctions for bad faith conduct, which applies to short trials under NSTR 1(c)); cf. Chambers v. NASCO, Inc., 501 U.S. 32 (1991) (holding that the federal courts have the inherent power to sanction litigants, including awarding appropriate attorney fees, for bad faith conduct in litigation before the court). We thus also reject Brady's argument that NRS 18.010(2)(b) should apply because it is the only remedy available to prohibit parties from behaving in a harassing manner in the short trial program SUPREME COURT OF NEVADA 3 (0) 1947A e SUPREME COURT OF NEVADA 4 (0) 1947A ceS,