Bobby Berosini, Ltd. v. People for the Ethical Treatment of Animals

• Decision Date: 30 December 1998
• Docket Number: No. 29103,29103
• Citation: 114 Nev. 1348,971 P.2d 383
• Parties: BOBBY BEROSINI, LTD., A Nevada Corporation, and Bohumil Berousek, a/k/a Bobby Berosini, Appellants/Cross-Respondents, v. PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, a/k/a PETA, A Delaware Non-Profit Corporation; and Jeanne Roush, Respondents/Cross-Appellants, and Performing Animal Welfare Society, a/k/a PAWS, A California Non-Profit Corporation, and Pat Derby, Respondents.
• Court: Nevada Supreme Court

Page 383

971 P.2d 383

114 Nev. 1348

BOBBY BEROSINI, LTD., A Nevada Corporation, and Bohumil

Berousek, a/k/a Bobby Berosini, Appellants/Cross-Respondents, v. PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, a/k/a PETA, A

Delaware Non-Profit Corporation; and Jeanne

Roush, Respondents/Cross-Appellants,

and

Performing Animal Welfare Society, a/k/a PAWS, A California

Non-Profit Corporation, and Pat Derby, Respondents.

No. 29103.

Supreme Court of Nevada.

Dec. 30, 1998.

Rehearing Denied Feb. 26, 1999.

McKnight & Hendrix, Las Vegas, for Appellants/Cross-Respondents.

Wright, Judd & Winckler, Las Vegas; Hirschkop & Associates, P.C., Alexandria, Virginia, for Respondents/Cross-Appellants PETA and Roush.

Foley & Jones and Daniel T. Foley, Las Vegas, for Respondents PAWS and Derby.

OPINION

PER CURIAM.

This case involves an appeal and cross-appeal from the district court's order granting respondents/cross-appellants, People for the Ethical Treatment of Animals (PETA), and Performing Animal Welfare Society (PAWS), $144,000.00 and $42,000.00, respectively, in attorney's fees, and $228,625.48 and $6589.91, respectively, in costs.

On appeal, Bobby Berosini (Berosini) contends that the district court abused its discretion in awarding several items of respondents/cross-appellants' costs and in awarding attorney's fees pursuant to NRS 18.010(2)(b) as a sanction for prosecuting a frivolous claim. We agree. Accordingly, for the reasons set forth below, we reverse the district court's award of several categories of costs to PETA and PAWS, and vacate PETA and PAWS' award of attorney's fees pursuant to NRS 18.010(2)(b) in its entirety.

FACTS

The underlying material facts of this case are well known and are reported in detail in PETA v. Berosini, Ltd., 111 Nev. 615, 895 P.2d 1269 (1995). On August 2, 1989, approximately three days after a tape which depicted Berosini beating his stage animals aired on a national television program, Berosini filed a complaint against PETA and PAWS for defamation of character, intrusion, appropriation, tortious interference with contract, conspiracy, and injunction.

At the conclusion of trial, the jury unanimously found that Berosini had been defamed and that his privacy had been invaded. Consequently, the jury awarded Berosini damages totaling $4,200,000.00. The district court subsequently denied PETA and PAWS' post-trial motion for JNOV, after which they appealed the jury's verdict to this court.

On February 9, 1994, PETA, PAWS, and Berosini entered into a stipulation agreeing that they would file their memorandum of costs within two weeks after this court issued a remittitur. On May 22, 1995, we issued our decision reversing Berosini's favorable judgment in its entirety, after concluding that Berosini had failed to present sufficient evidence to support the verdict. See PETA, 111 Nev. at 639, 895 P.2d at 1285.

On May 31, 1995, we issued a remittitur in the case, and June 2, 1995, PAWS timely filed its memorandum of costs pursuant to the February 9, 1994, stipulation. On June 6, 1995, by agreement of the parties, the district court entered its order extending the date for PETA to file its amended memorandum of costs until June 23, 1995. Pursuant to the district court's order, PETA timely filed its second memorandum of costs on June 23, 1995.

By order dated May 29, 1996, the district court awarded PETA $228,625.48 and PAWS $6589.91 in costs. Additionally, the district court awarded PETA $144,000.00 and PAWS $42,000.00 in attorneys' fees pursuant to NRS 18.010(2)(b), as a sanction against Berosini for filing a frivolous lawsuit. However, in making this ruling with respect to attorney's fees, the district court found that the totality of Berosini's complaint was not frivolous. With respect to PETA's request for attorney's fees, the district court found:

[T]here is a much greater factual basis for the possibility of--or for the filing of conspiracy and false light charges, and for a defamation action based upon the showing of a tape that had been enhanced and at the same time making a number of comments with regard to the concept of abuse that PETA did. Because I find there is much greater evidence against the PETA defendants ... I find that there is a greater validity to the suit as against PETA.

Because the district court concluded that much of Berosini's claim against PETA was meritorious, the district court determined, with respect to attorney's fees pursuant to NRS 18.010(2)(b), that:

[F]or purposes of apportionment whatever attorney's fees I find to be reasonable with regard to PETA will be apportioned on the basis of a sixty-forty ratio. That is, forty percent of the lawsuit I think had a great deal of validity, sixty percent of it I felt did not.

Based on this ratio, the district court awarded PETA $144,000.00 in attorney's fees.

Berosini now appeals, and PETA cross-appeals, from the district court's order granting PETA and PAWS costs and attorney's fees.

DISCUSSION

The district court abused its discretion in awarding several categories of costs to PETA and PAWS due to insufficient documentation.

Berosini asserts that the district court abused its discretion in awarding the full amount of PETA and PAWS' costs because they failed to provide sufficient documentation and itemization in their respective cost memoranda. ¹ We agree.

The determination of allowable costs is within the sound discretion of the trial court. However, statutes permitting the recovery of costs are to be strictly construed because they are in derogation of the common law. Gibellini v. Klindt, 110 Nev. 1201, 1205, 885 P.2d 540, 543 (1994). Pursuant to NRS 18.005, costs must be reasonable. We have held that "reasonable costs" must be actual and reasonable, "rather than a reasonable estimate or calculation of such costs...." Gibellini, 110 Nev. at 1206, 885 P.2d at 543.

Although Berosini challenges fifteen specific cost categories of the district court's award of costs to PETA, our review of the record on appeal has indicated that only four of the cost categories are problematic. In the first cost category, we note that the district court awarded PETA $3561.25 in fees for investigative services. Although investigative fees are not specifically recoverable pursuant to NRS 18.005, a district court may nonetheless award costs for additional items pursuant to NRS 18.005(16) on the condition that such fees are reasonable, necessary and incurred in the action. ²

Here, although PETA submitted itemized material in support of its request for investigative fees, PETA did not attempt to demonstrate how such fees were necessary to and incurred in the present action. Because we must strictly construe statutes permitting the recovery of costs, see Gibellini, 110 Nev. at 1205, 885 P.2d at 543, we conclude that PETA has failed to justify its entitlement to costs for investigative fees. Accordingly, the district court abused its discretion in awarding PETA such costs.

In addition to fees for investigative services, the district court awarded PETA $6089.64 in costs for photocopies and $4974.69 in costs for long distance telephone charges. Both categories of costs are recoverable pursuant to NRS 18. 005(12)-(13). However, based on our review of the record on appeal, we note that PETA failed to provide sufficient justifying documentation beyond the date of each photocopy and the total photocopying charge. Moreover, PETA failed to provide any itemization with respect to its request for long distance telephone costs. Because of PETA's insufficient documentation, we are unable to determine the reasonableness of these cost awards. Accordingly, the district court abused its discretion in awarding PETA such costs.

Additionally, the district court awarded PETA costs for jurors' fees in the amount of $12,370.00. Although jurors' fees are recoverable pursuant to NRS 18.005(3), PETA's supplemental documentation of costs fails to contain any itemization or justifying documentation with respect to this cost. Accordingly, we are unable to ascertain whether such costs were accurately assessed and, thus, we conclude that the district court abused its discretion in awarding PETA $12,370.00 in jury fees.

Finally, we note that the district court awarded $6589.91 in costs to PAWS. Based on our review of the record on appeal, we note that PAWS' memorandum of costs is completely void of any specific itemization. Because of the lack of sufficient supporting documentation, we conclude that the district court abused its discretion in awarding costs to PAWS.

The district court abused its discretion in awarding attorney's fees pursuant to NRS 18.010(2)(b).

Berosini argues that the district court abused its discretion in awarding PETA $144,000.00 and PAWS $42,000.00 in attorneys' fees pursuant to NRS 18.010(2)(b). Specifically, Berosini asserts that his favorable trial verdict below, combined with the fact that his claim was legally sufficient to withstand summary judgment and a post-trial motion for JNOV, "conclusively establishes that [his] complaint was brought on reasonable grounds." We agree.

The decision to award attorney's fees is within the sound discretion of the trial court. Bergmann v. Boyce, 109 Nev. 670, 674, 856 P.2d 560, 563 (1993). A district court's award of attorney's fees will not be disturbed on appeal absent a manifest abuse of discretion. Nelson v. Peckham Plaza Partnerships, 110 Nev. 23, 26, 866 P.2d 1138, 1139-40 (1994).

NRS 18.010(2) provides:

In addition to the cases where an allowance is authorized by specific statute, the court may make an allowance of attorney's fees to a prevailing party:

....

(b) Without regard to the recovery sought, when the court finds that the claim ... was brought without reasonable ground or to harass the prevailing party.

In Allianz Ins. Co. v. Gagnon, 109 Nev. 990, 996, 860 P.2d 720, 724 (1993), we explained that for purposes of an award of attorney's fees pursuant to NRS 18.010(2)(b), "[a...