pro se appeals from orders dismissing a complaint in a tort
action and awarding attorney fees and costs. Second Judicial
District Court, Washoe County; Elliott A. Sattler, Judge.
Dezzani and Rochelle Dezzani, San Clemente, California, in
& Associates, Ltd., and Gayle A. Kern and Veronica A.
Carter, Reno; McDonald Carano LLP and Debbie A. Leonard,
Reno, for Respondents.
Marquis Aurbach Coffing and Micah S. Echols and Adele V.
Karoum, Las Vegas, for Amicus Curiae State Bar of Nevada.
these consolidated appeals, we consider whether an attorney
can be held liable for a claim under NRS 116.31183 as an
agent of a common-interest community homeowners'
association. We also consider whether attorneys litigating
pro se and/or on behalf of their law firms can recover
attorney fees and costs.
conclude that an attorney is not an "agent" under
NRS 116.31183 for claims of retaliatory action where the
attorney is providing legal services for a common-interest
community homeowners' association. We further conclude
that attorneys litigating pro se and/or on behalf of their
law firms cannot recover fees because those fees were not
actually incurred by the attorney or the law firm. However,
we conclude that attorneys litigating pro se and/or on behalf
of their law firms can recover taxable costs in the action.
Accordingly, we affirm in part and reverse in part.
AND PROCEDURAL HISTORY
David and Rochelle Dezzani own a condominium in Incline
Village, Nevada. Like all unit owners, the Dezzanis are
members of the McCloud Condominium Homeowners'
Association (HOA), which is governed by a board of directors
and subject to the Revised Declaration of Limitations,
Covenants, Conditions, and Restrictions of McCloud
Condominium Homeowners' Association (CC&Rs).
Respondents Gayle Kern, a Nevada attorney, and her law firm,
Kern & Associates (collectively, Kern), represent the HOA
and provide legal advice to its governing board.
2013, a dispute arose between the Dezzanis and the HOA
regarding an extended deck on the Dezzanis' unit: The
previous unit owner installed the deck extension with board
approval in 2002. The board issued the Dezzanis a notice of
violation (NOV) with drafting assistance from Kern informing
the Dezzanis that the deck encroached into the common area
and thus violated the CC&Rs. The NOV indicated that the
Dezzanis had two choices: (1) submit an architectural
application to the board to revert the deck back to its
original size; or (2) execute a covenant for the deck
extension, which would allow it to remain for the
Dezzanis' ownership and one subsequent conveyance.
the Dezzanis responded to the NOV, Kern sent the Dezzanis a
letter stating that she represented the HOA and restating the
board's position on the deck extension. Kern and the
Dezzanis exchanged several letters wherein Kern communicated
the board's position regarding the deck and the Dezzanis
challenged the NOV and criticized Kern's legal advice,
understanding of Nevada law, and competency. The board held a
hearing and ultimately upheld the NOV. Throughout this time,
Kern advised the HOA regarding the Dezzanis' and other
members' deck extensions.
Dezzanis filed a complaint against Kern and board member
Karen Higgins. The complaint alleged retaliation based on
NRS 116.31183. This statute allows a unit owner to
"bring a separate action" for compensatory damages,
attorney fees, and costs. NRS 116.31183(2)(a), (b). Such an
action is permissible when "[a]n executive board, a
member of an executive board, a community manager or an
officer, employee or agent of an association" takes
retaliatory action against a unit's owner because the
unit's owner has:
(a) Complained in good faith about any alleged violation of
[NRS Chapter 116] or the governing documents of the
(b) Recommended the selection or replacement of an attorney,
community manager or vendor; or
(c) Requested in good faith to review the books, records or
other papers of the association.
NRS 116.31183(1). The Dezzanis alleged that Kern retaliated
against them because they requested that the HOA retain a new
attorney; however, the Dezzanis did not specify how Kern
retaliated against them other than furnishing advice to the
HOA and communicating with the Dezzanis on behalf of the HOA.
district court granted Kern's NRCP 12(b)(5) motion to
dismiss with prejudice after finding that NRS 116.31183 does
not permit attorneys to be held personally liable for action
taken on behalf of a client, and that "to permit such
causes of action against Kern would result in a chilling
effect on individuals' ability to hire and retain
counsel." The district court awarded fees and costs
to Kern pursuant to NRS 18.010(2)(b) and NRCP 11, finding
that the Dezzanis' claims were intended to harass Kern
because Kern informed the Dezzanis that their claims were
meritless. The Dezzanis appealed both orders.
Dezzanis' appeals were consolidated and assigned to the
Court of Appeals, where that court affirmed the order
dismissing the complaint and reversed the attorney fees and
costs award because the Dezzanis failed to submit their claim
to mediation under NRS 38.310(1).See Dezzani v. Kern &
Assocs., Docket Nos. 69410 & 69896 (Order Affirming
in Part and Reversing in Part, Nev. Ct. App., Nov. 16, 2016).
Kern filed a petition for review with this court, which we
116.31183 permits "a separate action" when an
"agent" of a homeowners' association takes
certain retaliatory action against a unit's owner. The
issue here is whether the term "agent" in the
statute includes an attorney who is providing legal services
to and acting on behalf of a homeowners' association.
district court did not err in dismissing the Dezzanis'
review an order granting an NRCP 12(b)(5) motion to dismiss
de novo. Buzz Stew, LLC v. City of N. Las Vegas, 124
Nev. 224, 227-28, 181 P.3d 670, 672 (2008). Issues of
statutory construction are reviewed de novo. Pub.
Emps.' Benefits Program v. Las Vegas Metro. Police
Dep't, 124 Nev. 138, 146, 179 P.3d 542, 548 (2008).
"The leading rule of statutory construction is to
ascertain the intent of the legislature in enacting the
statute." McKay v. Bd. of Supervisors of Carson
City, 102 Nev. 644, 650, 730 P.2d 438, 443 (1986). To
determine legislative intent, we first consider and give
effect to the statute's plain meaning because that is the
best indicator of the Legislature's intent. Pub.
Emps.' Benefits Program, 124 Nev. at 147, 179 P.3d
at 548. "[I]t is the duty of this court, when possible,
to interpret provisions within a common statutory scheme
harmoniously with one another in accordance with the general
purpose of those statutes and to avoid unreasonable or absurd
results, thereby giving effect to the Legislature's
intent." Torrealba v. Kesmetis, 124 Nev. 95,
101, 178 P.3d 716, 721 (2008) (internal quotation marks
word "agent" is not defined in NRS 116.31183 or
otherwise in NRS Chapter 116. See NRS 116.31183; NRS
116.003-.095 (definitions). Kern points to NRS 116.31164,
which governs foreclosure of liens, and argues that because
NRS 116.31164 uses the words "agent" and
"attorney" distinctly, it demonstrates that the
Legislature purposefully distinguished an attorney from an
agent under NRS Chapter 116. Therefore, Kern contends that
the Legislature specifically omitted attorneys from NRS
116.31183, and the term "agent" does not include
agree. NRS 116.31164(4) states that a foreclosure sale can be
"conducted by the association, its agent or
attorney." (Emphasis added.) This distinction
demonstrates that the Legislature used the term
"attorney" when it intended to address situations
applying to attorneys and the term "agent" when it
intended to generically address the duties owed by agents.
See Coast Hotels & Casinos, Inc. v. Nev. State Labor
Comm'n,117 Nev. 835, 841, 34 P.3d 546, 550 (2001)
("Generally, when the [Legislature has employed a term
or phrase in one place and excluded it in another, it should
not be implied where excluded."); Allstate Ins. Co.
v. Fackett,125 Nev. 132, 138, 206 P.3d 572, 576 (2009)
("We read statutes within a statutory scheme
harmoniously with one another to avoid an unreasonable or
absurd result."); McGrath v. State Dep't of Pub.
Safety,123 Nev. 120, 123, 159 P.3d 239, 241 (2007)
(concluding that "we presume that the Legislature
intended to use words in their usual and natural
meaning"); see also Food & Drug Admin, v. Brown
& Williamson Tobacco Corp.,529 U.S. 120, 133 (2000)
(concluding that courts must interpret statutes "as a
symmetrical and coherent regulatory scheme" (internal
quotation marks omitted)); Davis v. Mich. Dep't of
Treasury,489 U.S. 803, 809 (1989) ("It is a
fundamental canon of statutory construction that the words of
a statute must be read in their context and with a view to