Las Vegas Review-Journal v. City of Henderson

• Decision Date: 23 December 2021
• Docket Number: No. 81758,81758
• Citation: 500 P.3d 1271
• Parties: LAS VEGAS REVIEW-JOURNAL, Appellant, v. CITY OF HENDERSON, Respondent.
• Court: Nevada Supreme Court

500 P.3d 1271

LAS VEGAS REVIEW-JOURNAL, Appellant,

v.CITY OF HENDERSON, Respondent.

No. 81758

Supreme Court of Nevada.

FILED DECEMBER 23, 2021

McLetchie Law and Margaret A. McLetchie and Alina M. Shell, Las Vegas, for Appellant.

Nicholas G. Vaskov, City Attorney, and Brandon P. Kemble and Brian R. Reeve, Assistant City Attorneys, Henderson; Bailey Kennedy and Dennis L. Kennedy, Sarah E. Harmon, and Andrea M. Champion, Las Vegas, for Respondent.

BEFORE THE SUPREME COURT, PARRAGUIRRE, STIGLICH, and SILVER, JJ.

OPINION

By the Court, STIGLICH, J.:

The Nevada Public Records Act (NPRA) requires governmental bodies to make nonconfidential public records within their legal custody or control available to the public. Where a governmental body denies a public records request, the requester may apply to the court for an order compelling production. If the requester prevails, the requester may recover costs and reasonable attorney fees.

During the pendency of this dispute, this court adopted the catalyst theory to determine whether a requesting party prevails in such litigation when the governmental body ultimately provides the records without mandate by court order. Under the catalyst theory, the requesting party may be able to recover attorney fees when the defendant changes its behavior because of and as sought by the litigation. Here, appellant Las Vegas Review-Journal (LVRJ) requested records from respondent City of Henderson and filed suit to compel their production, but Henderson eventually produced the records without court mandate before the litigation reached its conclusion. LVRJ requested attorney fees, and the district court applied the catalyst theory in denying the request. The district court, however, misconstrued one of the factors in the catalyst-theory analysis and neglected to conduct more than a summary analysis of several other factors. Accordingly, we reverse the district court's order and remand for further proceedings consistent with our guidance herein on applying the catalyst theory.

FACTUAL AND PROCEDURAL BACKGROUND

Litigation relating to this dispute has twice before reached this court. LVRJ submitted a public records request to Henderson under the NPRA for documents related to Henderson's use of a public relations firm. Cf. NRS 239.001. Henderson performed a search and determined that LVRJ's request encompassed approximately 70,000 pages of documents. Within five business days of LVRJ's request, Henderson responded that its search yielded a large set of documents and that it would need to review the documents for privilege and confidentiality before it could provide copies to LVRJ. Henderson requested a payment from LVRJ to cover the cost of the privilege review and requested a deposit of half of that sum before it would begin the privilege review.

LVRJ sought mandamus relief in district court, arguing that Henderson should be compelled to provide the records without payment of the privilege-review fee. After LVRJ filed the mandamus petition, Henderson reviewed the documents for privilege and permitted LVRJ to inspect the nonprivileged records while they litigated the privilege-review fee. Henderson provided a privilege log and ultimately provided copies of the records to LVRJ, except for those listed in the privilege log. The district court found that Henderson's actions satisfied its requirements under the NPRA, and LVRJ appealed. On appeal, LVRJ argued, among other claims, that the privilege log was insufficient and that it did not make clear whether the withheld documents were protected by the attorney-client, work-product, or deliberative-process privileges. This court disagreed as to the attorney-client- and work-product-protected documents but agreed that the district court should have balanced whether Henderson's interest in nondisclosure clearly outweighed the public's interest in accessing the deliberative-process-privileged documents, and we remanded to the district court to conduct this analysis. Las Vegas Review-Journal v. City of Henderson , No. 73287, 2019 WL 2252868 (Nev. May 24, 2019) (Order Affirming in Part, Reversing in Part, and Remanding). Thereafter, before the court addressed the issue on remand, Henderson voluntarily disclosed the 11 documents that it had withheld pursuant to the deliberative-process privilege.

Meanwhile, the district court resolved LVRJ's pending motion for attorney fees, granting it in part after concluding that LVRJ prevailed in accessing records from Henderson. Henderson appealed, and LVRJ cross-appealed, as the district court awarded less than LVRJ had sought. This court observed that LVRJ had not prevailed as to its request for the records withheld pursuant to the deliberative-process privilege because that issue had been remanded to the district court to resolve. City of Henderson v. Las Vegas Review-Journal , No. 75407, 2019 WL 5290874 (Nev. Oct. 17, 2019) (Order of Reversal). We further observed that this court affirmed the district court's denials of LVRJ's other claims and concluded that the district court therefore erred in finding that LVRJ was a prevailing party. Id. ; cf. Las Vegas Review-Journal , 2019 WL 2252868. Accordingly, we reversed the district court's partial award of attorney fees. City of Henderson, 2019 WL 5290874.

Subsequently, this court issued Las Vegas Metropolitan Police Department v. Center for Investigative Reporting, Inc. , 136 Nev. 122, 460 P.3d 952 (2020) ( CIR ) , concluding that whether a party prevails and may recover attorney fees in a public records matter that has not proceeded to final judgment is determined by the catalyst theory. LVRJ amended its request for attorney fees and argued that it was entitled to recovery as the prevailing party under the catalyst theory. The district court found that the law-of-the-case doctrine barred LVRJ from seeking prevailing-party fees on any claims besides those related to the deliberative-process privilege, concluded that LVRJ likewise was not a prevailing party for the 11 documents withheld under the deliberative-process privilege, and denied the motion. This appeal followed.

DISCUSSION

As a preliminary matter, LVRJ argues that the district court erred when it limited the scope of attorney fees that may be recoverable to LVRJ's efforts to obtain the 11 deliberative-process-privilege documents. LVRJ argues that it was entitled to recover its fees relating to its efforts to access the broader set of requested records because its litigation was the catalyst for their disclosure. Henderson argued below that the law of the case precluded LVRJ from seeking recovery for the larger universe of records because this court concluded that LVRJ was not the prevailing party on any of its claims related to those documents. Cf. City of Henderson , 2019 WL 5290874. The district court agreed and denied LVRJ's request for attorney fees for these efforts, concluding that the law of the case was dispositive. LVRJ did not challenge application of the law-of-the-case doctrine below or in its opening brief, addressing the issue for the first time in its reply brief. Accordingly, we conclude that LVRJ waived the issue and decline to consider it. See Weaver v. State, Dep't of Motor Vehicles , 121 Nev. 494, 502, 117 P.3d 193, 198-99 (2005) (providing that issues raised for the first time in an appellant's reply brief need not be considered).

Accordingly, we affirm the district court's order to the extent that it concluded the law-of-the-case doctrine limited the scope of attorney fees for which LVRJ could seek recovery.

The district court abused its discretion in its catalyst-theory analysis

LVRJ next argues that the district court misapplied the catalyst theory when it denied LVRJ attorney fees and costs. "[A]ttorney fees may not be awarded absent a statute, rule, or contract authorizing such award." Thomas v. City of N. Las Vegas , 122 Nev. 82, 90, 127 P.3d 1057, 1063 (2006). NRS 239.011(2) provides that a prevailing party may recover costs and attorney fees. "A party prevails if it succeeds on any significant issue in litigation which achieves some of the benefit it sought in bringing suit." Las Vegas Metro. Police Dep't v. Blackjack Bonding, Inc. , 131 Nev. 80, 90, 343 P.3d 608, 615 (2015) (internal quotation marks omitted). Generally, an action must have proceeded to final judgment for a party to have prevailed. Dimick v. Dimick , 112 Nev. 402, 404, 915 P.2d 254, 256 (1996). Whether a party prevails in a public records matter that ultimately is resolved outside the court is determined by application of the catalyst theory. CIR , 136 Nev. at 127-28, 460 P.3d at 957. "Under the catalyst theory, a requester prevails when its public records suit causes the governmental agency to substantially change its behavior in the manner sought by the requester, even when the litigation does not result in a judicial decision on the merits." Id. at 128, 460 P.3d at 957. In assessing whether a requester prevailed under the catalyst theory, the district court must consider

(1) when the documents were released, (2) what actually triggered the documents' release, ... (3) whether [the requester] was entitled to the documents at an earlier time. Additionally, the district court should take into consideration [4] whether the litigation was frivolous, unreasonable, or groundless, and [5] whether the requester reasonably attempted to settle the matter short of litigation by notifying the governmental agency of its grievances and giving the agency an opportunity to supply the records within a reasonable time.

Id. at 128, 460 P.3d at 957-58 (internal quotation marks and citation omitted). We clarify that consideration of these factors is mandatory. Cf. O'Connell v. Wynn Las Vegas, LLC , 134 Nev. 550, 554, 429 P.3d 664, 668 (Ct. App. 2018) (observing that consideration of the Beattie v. Thomas , 99 Nev. 579, 588-89, 668 P.2d 268, 274 (1983), factors is mandatory in considering whether to award fees pursuant to NRCP 68 )....