O'CONNELL v. WYNN LAS VEGAS, LLC

134 Nev., Advance Opinion 61
IN THE COURT OF APPEALS OF THE STATE OF NEVADA
YVONNE O'CONNELL, AN No, 71789
INDIVIDUAL,
Appellant,
vs.
FILED
WYNN LAS VEGAS, LLC, D/B/A WYNN AUG 3 8 2018
LAS VEGAS,
Respondent.
BY
CHIEF DERTIMCECE'RK
Appeal from a post-judgment order denying appellant's motion
for attorney fees and costs. Eighth Judicial District Court, Clark County;
Carolyn Ellsworth, Judge.
Reversed and remanded.
Nettles Law FirmS and Brian D. Nettles, Christian M. Morris, Jon J.
Carlston, and Edward J. Wynder, Henderson,
for Appellant.
Semenza Kircher Rickard and Lawrence J. Semenza, III, Christopher D.
Kircher, and Jarrod L. Rickard, Las Vegas,
for Respondent.
BEFORE SILVER, C.J., TAO and GIBBONS, JJ.
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OPINION
By the Court, GIBBONS, J.:
Yvonne O'Connell sued Wynn Las Vegas, LLC, for negligence
after she was injured when she slipped and fell on the resort's property.'
Before the jury trial on O'Connell's claims, O'Connell made a $49,999 offer
of judgment to Wynn, which it rejected. A jury awarded O'Connell $400,000
for past and future pain and suffering, with the final judgment of $240,000
reflecting that the jury deemed Wynn 60 percent at fault and O'Connell 40
percent at fault.
O'Connell subsequently sought an attorney fees award under
NRCP 68, which allows a party to seek attorney fees when the final
judgment is more favorable than her rejected offer of judgment. She
requested $96,000 in attorney fees, which she calculated as 40 percent of
the reduced judgment amount based on the 40-percent contingency fee
agreement with her attorneys. The district court denied her request. The
court did not award O'Connell any attorney fees because, in part, O'Connell
did not submit hourly billing records of the work performed by her counsel
to show the requested fee was reasonable. The court further found that the
other factors set forth in Beattie v. Thomas, 99 Nev. 579, 588-89, 668 P.2d
268, 274 (1983), likewise supported denying attorney fees. O'Connell
appealed, arguing that she should not be required to submit hourly billing
records to support an attorney fees award when her attorneys represented
her on a contingency fee basis and that the court otherwise abused its
discretion in weighing the Beattie factors to deny her fees request.
'This appeal was consolidated with the appeal in Docket No. 70583
prior to briefing. We now deconsolidate these appeals for the purposes of
disposition. Judgment was affirmed in Docket No. 70583.
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This case asks us to examine if a lawyer, who represents a client
on a contingency fee basis, must provide proof of hourly billing records
before he or she can be awarded attorney fees that are otherwise allowed by
agreement, rule, or statute. We conclude that district courts cannot deny
attorney fees because an attorney, who represents a client on a contingency
fee basis, does not submit hourly billing records. The district court here
relied primarily on the lack of hourly billing records in evaluating the
reasonableness of O'Connell's application for attorney fees, without
recognizing that attorney fees can be awarded when they are based upon
contingency fee agreements. And because we further determine that the
district court improperly analyzed certain of the remaining Beattie factors,
we conclude the court abused its discretion in denying her request.
Consequently, we reverse the district court's denial of O'Connell's request
for attorney fees and remand for a full hearing on O'Connell's request. 2
FACTS AND PROCEDURAL HISTORY
On February 8, 2010, O'Connell slipped and fell on a liquid
substance as she was walking through the front atrium of the Wynn resort.
Two days later, she went to an urgent care facility seeking treatment for
her pain from the fall. She continued to see a series of doctors for pain and
injuries related to the incident. Two years after her fall, O'Connell sued
Wynn for negligence. Discovery progressed over the following three years,
2 The district court partially awarded O'Connell her requested expert
witness fees. O'Connell argues on appeal that the district court should have
awarded her the entirety of those fees. O'Connell did not raise this
argument until her reply brief in her appeal. Therefore, we decline to
consider it now. See Weaver v. State, Dep't of Motor Vehicles, 121 Nev. 494,
502, 117 P.3d 193, 198-99 (2005) ("As this argument was raised only in
[appellant's] reply brief, we need not consider it."). All other points raised
on appeal not discussed herein are unpersuasive.
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and the case was tried before a jury, over a seven-day period, in November
2015.
Before the jury trial, Wynn and O'Connell attempted to settle
the case by exchanging offers of judgment. Wynn's top offer was for $3,000.
O'Connell's last offer was for $49,999, which included interest, costs, and
attorney fees. Four months before O'Connell's last offer, and before the
discovery deadline, she disclosed approximately $33,000 in medical
damages. She later disclosed an amended amount of nearly $38,000 in
damages approximately a month after the discovery deadline, but still
before she presented her offer of judgment. The case proceeded to a jury
trial, and the jury awarded O'Connell $400,000 for pain and suffering,
apportioned as $150,000 for past pain and suffering and $250,000 for future
pain and suffering. The jury assigned 60 percent of the fault to Wynn and
40 percent to O'Connell, and the judgment amount of $240,000 reflected the
verdict minus 40 percent.
Post-trial, in her initial application for attorney fees, costs, and
pre-judgment interest, O'Connell argued that her requested attorney fees
were reasonable and justified because the State Bar of Nevada approves of
contingency fee arrangements and "the industry standard" is 40 percent, or
more, if the case goes to a jury trial. Within her application, O'Connell noted
generally "the work done in this case" and argued that her "counsel
expended substantial time and incurred costs to try this matter through a
full jury trial." O'Connell further argued that, if the court did not award
fees, it would undermine the purpose of NRCP 68 and its goal to settle cases.
O'Connell contended that to decide "the amount of fees to award, the court
may calculate a reasonable amount to be that of the contingency fee," citing
to Shuette v. Beazer Homes Holdings Corp., 121 Nev. 837, 124 P.3d 530
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(2005). She claimed, without elaborating, that under Brunzell v. Golden
Gate National Bank, 85 Nev. 345, 455 P.2d 31 (1969), which sets out factors
to help courts assess a reasonable amount of attorney fees, it was evident
that her request for $96,000 in attorney fees was "reasonable." To support
this request, O'Connell attached her contingency fee agreement, which
stated, in part, that the fee would be 40 percent of any recovery and 50
percent of any recovery if there was an appeal.
In her later-filed amended application for fees, costs, and pre-
judgment interest, O'Connell addressed the Brunzell factors and argued
that her counsel satisfied all four factors. As to the second factor, the type
of work done, O'Connell noted that contingency fees are common in personal
injury cases because clients usually have fewer resources to pay legal fees
up front or as the fees accrue. She argued that personal injury cases are
difficult because the burden of proof rests on the plaintiff and the "[c] ases
require considerable skill and effort in written discovery and trial work."
Additionally, she explained the risk attorneys take by accepting cases on a
contingency fee basis because "attorneys will not be entitled to fees if they
lose." Regarding the third factor about the "work actually performed,"
O'Connell summarily argued that her counsel "spent hundreds of hours
preparing and litigating this case."
The district court conducted a brief hearing on the motion for
attorney fees, and no additional evidence was presented. The court allowed
only limited argument by O'Connell and then denied the request for
attorney fees. In its order, the district court rejected O'Connell's request for
attorney fees in its entirety. It applied the Beattie factors, 99 Nev. at 588-
89, 668 P.2d at 274, as required when evaluating an NRCP 68 offer to decide
whether the prevailing party is entitled to attorney fees. The district court
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concluded that the first three Beattie factors favored Wynn, signaling that
O'Connell was not entitled to attorney fees despite prevailing. For the
fourth Beattie factor regarding the reasonableness of the fees, the court
applied the factors from Brunzell to decide what, if any, amount of attorney
fees it could award. It acknowledged that O'Connell provided the qualities
of her counsel and that it was apparent she received a favorable result. The
court did not distinctly address the remaining two Brunzell factors Instead
it only addressed the tasks performed and hours associated with them. It
decided that it could not determine if the fees were reasonable without any
bills describing the tasks completed and the hours expended, and found in
favor of Wynn on the fourth Beattie factor.
In her appeal from the district court's decision regarding
attorney fees, O'Connell does not argue that she provided any billing
statements to the court in addressing the determination that the
reasonableness of the award could not be determined absent any bills.
Rather, she argues that the district court is holding contingency fee
agreements to "a double standard" by requiring hourly billing records. We
agree that declining to assess the reasonableness of a request for attorney
fees, based upon a contingency fee agreement, because the motion was not
supported by hourly billing statements, is improper when analyzing
whether to award fees under Beattie and how much to award under
Brunzell.
ANALYSIS
A party may seek attorney fees when allowed by an agreement,
rule, or statute. See NRS 18.010 (governing awards of attorney fees); RTTC
Commc'ns, LLC v. The Saratoga Flier, Inc., 121 Nev. 34,40, 110 P.3d 24, 28
(2005) (noting that "a court may not award attorney fees absent authority
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under a specific rule or statute"). NRCP 68 establishes the rules regarding
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offers of judgment. A party may serve an offer of judgment "fah any time
more than 10 days before trial." NRCP 68(a). If a party "rejects an offer
and fails to obtain a more favorable judgment," that party is responsible for
"the offeror's post-offer costs, applicable interest on the judgment from the
time of the offer to the time of entry of the judgment and reasonable
attorney's fees, if any be allowed, actually incurred by the offeror from the
time of the offer." NRCP 68(0(2); see also RTTC, 121 Nev. at 40-41, 110
P.3d at 28.
The district court must evaluate the Beattie factors when
deciding whether to award attorney fees pursuant to NRCP 68. Frazier v.
Drake, 131 Nev. 632, 641-42, 357 P.3d 365, 372 (Ct. App. 2015). Ultimately,
the decision to award attorney fees rests within the district court's
discretion, and we review such decisions for an abuse of discretion. Id. at
642, 357 P.3d at 372. The district court abuses its discretion when "the
court's evaluation of the Beattie factors is arbitrary or capricious." Id.
The Beattie factors require the district court to evaluate:
(1) whether the plaintiffs claim was brought in
good faith; (2) whether the defendants' offer of
judgment was reasonable and in good faith in both
its timing and amount; (3) whether the plaintiffs
decision to reject the offer and proceed to trial
was grossly unreasonable or in bad faith; and
(4) whether the fees sought by the offeror are
reasonable and justified in amount.
Beattie, 99 Nev. at 588-89, 668 P.2d at 274. Beattie applies to plaintiffs and
defendants. See Yamaha Motor Co., U.S.A. v. Arnoult, 114 Nev. 233, 252,
955 P.2d 661, 673 (1998) (deciding that when the defendant is the offeree,
the court should consider if the defendant's defense was brought in good
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faith under the first factor and remanding for the district court to reconsider
liability issues when evaluating whether the defendant's rejection of the
offer was unreasonable or in bad faith under the third factor). When it is
determined that the first three Beattie factors weigh in favor of the party
who rejected the offer of judgment, the reasonableness of the requested fees
becomes irrelevant as the reasonableness of the fees alone cannot support
an attorney fees award. Frazier, 131 Nev. at 644, 357 P.3d at 373.
When considering the amount of attorney fees to award, the
analysis turns on the factors set forth in Brunzell. Of particular significance
to this case, Brunzell provides that "Ewthile hourly time schedules are
helpful in establishing the value of counsel services, other factors may be
equally significant." 85 Nev. at 349, 455 P.2d at 33. Brunzell directs lower
courts to consider the following when determining a reasonable amount of
attorney fees to award:
(1) the qualities of the advocate: his ability, his
training, education, experience, professional
standing and skill; (2) the character of the work to
be done: its difficulty, its intricacy, its importance,
time and skill required, the responsibility imposed
and the prominence and character of the parties
where they affect the importance of the litigation;
(3) the work actually performed by the lawyer: the
skill, time and attention given to the work; (4) the
result: whether the attorney was successful and
what benefits were derived.
Id. (internal quotation marks omitted). With these standards in mind, we
turn to the matter before us.
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The offer of judgment was reasonable and in good faith 3
The district court concluded that the second Beattie factor
weighed in Wynn's favor because the court precluded O'Connell from
submitting "special medical damages at the time of trial," which made it
difficult for Wynn to determine the value of the case. The court also
concluded that the offer was unreasonable because O'Connell made it when
she did not have a proper damages calculation. O'Connell argues that she
had disclosed approximately $38,000 in medical damages at the time of her
offer. Wynn contends that O'Connell's damages should have been excluded
because of discovery issues, while O'Connell points to the significant
amount of discovery her attorneys completed before making the $49,999
offer.
The second Beattie factor requires district courts to evaluate
"whether the. . . offer of judgment was reasonable and in good faith in both
its timing and amount." Beattie, 99 Nev. at 588, 668 P.2d at 274. "[T]here
is no bright-line rule that qualifies an offer of judgment as per se reasonable
in amount; instead, the district court is vested with discretion to consider
the adequacy of the offer and the propriety of granting attorney fees."
3 We
address only Beattie factors two and four in this opinion. On
appeal, O'Connell does not challenge the district court's ruling on the first
Beattie factor, and so we need not consider it. See Powell v. Liberty Mitt.
Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011) ("Issues
not raised in an appellant's opening brief are deemed waived.").
Additionally, Wynn did not respond to O'Connell's argument regarding the
third Beattie factor. Therefore, Wynn conceded this point, and thus, the
district court will need to reweigh this factor upon remand. See Bates v.
Chronister, 100 Nev. 675, 682, 691 P.2d 865, 870 (1984) (treating
respondent's failure to address one of appellant's arguments "as a
confession of error").
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Certified Fire Prot., Inc. v. Precision Constr., Inc., 128 Nev. 371, 383, 283
P.3d 250, 258 (2012).
Here, the district court justified its decision to weigh the second
factor in Wynn's favor based on its conclusion that it had excluded evidence
of O'Connell's medical damages. This reasoning has two significant flaws.
First, as to timing, apart from its decision in its order denying O'Connell's
request for attorney fees, it is not apparent from the record that the district
court did in fact exclude O'Connell's medical damages. After it heard
Wynn's motion in limine seeking to exclude the medical damages before
trial, the court denied Wynn's motion without prejudice and deferred its
decision until trial, which was almost two months after O'Connell's offer of
judgment expired. Furthermore, on the first day of trial, O'Connell chose
not to seek medical damages, so it is unclear if an order was ever needed, or
entered, as one does not appear in the record. If the district court ever did
exclude the evidence, any exclusion occurred after O'Connell's offer of
judgment had expired. Therefore, Wynn did not know at the time it rejected
the offer of judgment that it would not face potential liability for medical
damages.
Second, as to the amount, whether O'Connell's medical
damages were excluded did not control her request for general damages,
which would include pain and suffering. Wynn had all of the necessary
information to evaluate O'Connell's claim as discovery had closed before she
made her offer. See Certified, 128 Nev. at 383, 283 P.3d at 258. Indeed,
Wynn risked the possibility of a large, six-figure verdict by rejecting
O'Connell's offer, regardless of the admissibility of her medical damages—
and that is exactly what happened. During closing arguments, O'Connell
asked the jury for a damages award in the six figures. She ultimately was
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awarded $400,000, and still received a $240,000 judgment after fault was
apportioned—well above her $49,999 offer of judgment that Wynn rejected.
See generally RTTC, 121 Nev. at 37, 43, 110 P.3d at 26, 29 (concluding that
there was "ample support in the record to support the district court's
findings that both [respondent's] claim and offer of judgment were brought
in good faith" in a case in which respondent made a $45,000 offer of
judgment that was rejected, yet the respondent was ultimately awarded
153,333, plus interest").
Based on the foregoing, the district court abused its discretion
by mistakenly concluding that, because medical damages were precluded,
O'Connell did not have a basis for her offer or that Wynn could not properly
evaluate her offer. 4 See Dillard Dep't Stores, Inc. v. Beckwith, 115 Nev. 372,
382, 989 P.2d 882, 888 (1999) (highlighting that Thlhe purpose of. . NRCP
68 is to save time and money" and to "reward a party who makes a
reasonable offer and punish the party who refuses to accept such an offer").
Thus, the determination regarding the reasonableness of the offer as to
timing and amount was an abuse of discretion and must be reweighed on
remand in consideration of all of the factors when deciding whether fees are
warranted.
``Wynn argued below that O'Connell's various offers resulted in
"gamesmanship" and was one reason why Wynn could not give due weight
to her $49,999 offer of judgment. But this argument is unpersuasive as the
record suggests that Wynn did not give due weight to any of O'Connell's
offers. O'Connell's $49,999 offer was close to her two most recently disclosed
medical damages at the time ($33,000 in medical damages followed by a
later disclosed $38,000 in medical damages). In comparison, Wynn only
made a $3,000 offer of judgment when O'Connell disclosed an estimated
$29,000 in medical expenses.
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The district court abused its discretion by limiting its review of the
reasonableness of O'Connell's fees to whether hourly billing records were
submitted
We now turn to the fourth Beattie factor to determine "whether
the fees sought by the offeror are reasonable and justified in amount."
Beattie, 99 Nev. at 589, 668 P.2d at 274. As discussed above, courts apply
the Brunzell factors within their analysis of the fourth Beattie factor to
determine a reasonable amount of attorney fees. Brunzell, 85 Nev. at 349,
455 P.2d at 33. Here, the district court concluded that, because O'Connell
did not provide bills detailing the tasks executed and hours expended to
complete those tasks, it could not determine if the requested fee was
reasonable based on the work performed.
We first address whether an attorney, who litigated a matter
based on a contingency fee agreement, is required to produce hourly billing
records to receive an attorney fees award. We conclude that such records
are not required. We then provide guidance as to how trial courts can
evaluate a fee request based on a contingency fee agreement that does not
include hourly billing statements.
Hourly billing records are not required to support an award of attorney
fees based on a contingency fee agreement
Nevada law does not require billing records with every attorney
fees request. The law only requires the trial court to calculate "a reasonable
fee." Shuette, 121 Nev. at 864, 124 P.3d at 548 (internal quotation marks
omitted); NRCP 68(0(2) (allowing an offeror reasonable attorney fees); see
also NRCP 54(d)(2)(B) (requiring "a fair estimate of' the reasonable
attorney fees). "[fin determining the amount of fees to award, the court is
not limited to one specific approach; its analysis may begin with any method
rationally designed to calculate a reasonable amount, including those based
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on a 'lodestar' amount or a contingency fee." Shuette, 121 Nev. at 864, 124
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P.3d at 549 (emphasis added) (citation omitted). 5 The district court must
properly weigh the Brunzell factors in deciding what amount to award. Id.
at 864-65, 124 P.3d at 549. "In this manner, whichever method the court
ultimately uses, the result will prove reasonable as long as the court
provides sufficient reasoning and findings in support of its ultimate
determination." Id. at 865, 124 P.3d at 549.
In Cooke v. Gove, the Nevada Supreme Court upheld an
attorney fees award based on "the reasonable value" of the attorney's
services, even though the case was taken on a contingency fee basis with no
formal agreement. 61 Nev. 55, 61, 114 P.2d 87, 89 (1941). The "evidence"
to support the fee was the case file from the successful matter, some of the
letters between the client and attorney, and two depositions from other
attorneys about the value of the appellant's services. Id. at 57, 114 P.2d at
88. The court noted that the reasonable fee was based on the trial court's
evaluation of "the reasonable value of plaintiffs services from all the facts
and circumstances" after the court considered how the plaintiffs "work,
thought and skill contributed" to the successful outcome. Id. at 61, 114 P.2d
at 89 (internal quotation marks omitted).
Thus, the district court is not confined to authorizing an award
of attorney fees exclusively from billing records or hourly statements. See
Shuette, 121 Nev. at 864-65, 124 P.3d at 548-49; Brunzell, 85 Nev. at 349,
455 P.2d at 33. Rather, limiting the source for the calculation primarily to
billing records is too restrictive. See generally Shuette, 121 Nev. at 864, 124
The lodestar method "involves multiplying the number of hours
5
reasonably spent on the case by a reasonable hourly rate." Shuette, 121 Nev.
at 864 n.98, 124 P.3d at 549 n.98 (emphasis added) (internal quotation
marks omitted).
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P.3d at 549 (stating that there is no one approach to determining the
amount of attorney fees). Accordingly, a trial court can award attorney fees
to the prevailing party who was represented under a contingency fee
agreement, even if there are no hourly billing records to support the request.
We note that our conclusion is in line with other jurisdictions
that squarely address awarding attorney fees based on a contingency fee
agreement. For example, in McNeel v. Farm Bureau General Insurance Co.,
the Michigan Court of Appeals reversed a trial court's decision to reduce an
award of fees to an attorney who represented a client on a contingency fee
basis because the "court gave only mild consideration to the complexity of
the case" and did not factor in the required attorney preparation. 795
N.W.2d 205, 221 (Mich. Ct. App. 2010). The McNeel court outlined what
the trial court could do when reviewing a fee without billable hour
statements: "The trial court can certainly consider the type of case, the
length of the trial, the difficulty of the case, the numbers and types of
witnesses, as well as other relevant factors. . . ." Id. at 220 (internal
quotation marks omitted). Similarly, in California, billing records are not
always required. See Mardirossian & Assocs., Inc. v. Ersoff, 62 Cal. Rptr.
3d 665, 676 (Ct. App. 2007) (concluding that the trial court did not abuse its
discretion in an attorney fees award case, in part, because, despite a lack of
billing records, the Mardirossian attorneys had personal knowledge of the
legal work they performed and "each testified at length concerning the work
he or she performed, the complexity of the issues and the extent of the work
that was required").
Courts have recognized an additional reason that supports
awarding attorney fees—the risks attorneys take by offering or accepting
contingency fee agreements. See King v. Fox, 851 N.E.2d 1184, 1191-92
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(N.Y. 2006) ("In entering into contingent fee agreements, attorneys risk
their time and resources in endeavors that may ultimately be fruitless.
Moreover, it is well settled that the client may terminate [the contingency
fee agreement] at any time, leaving the lawyer no cause of action for breach
of contractU only quantum meruit." (first alteration in original) (citation
and internal quotation marks omitted)); see also Scheme v. Reliable
Collection Agency, Ltd., 32 P.3d 52, 96-97 (Haw. 2001) (concluding that fee
awards can be justified based on the risks associated with accepting a case
on a contingency fee basis). Courts should also account for the greater risk
of nonpayment for attorneys who take contingency fee cases, in comparison
to attorneys who bill and are paid on an hourly basis, as they normally
obtain assurances they will receive payment. See Rendine v. Pantzer, 661
A.2d 1202, 1228 (N.J. 1995) (recognizing that rewarding a lawyer for taking
a case for which compensation is contingent on the outcome is based in part
on providing a monetary incentive for taking such cases because an hourly
fee is more attractive unless such an extra incentive exists).
Additionally, contingency fees allow those who cannot afford an
attorney who bills at an hourly rate to secure legal representation. See
King, 851 N.E.2d at 1191 ("Contingent fee agreements between attorneys
and their clients . . . generally allow a client without financial means to
obtain legal access to the civil justice system."). Relatedly, attorney fees are
permissible in pro bono cases, where there are likewise no billing
statements. See Miller v. Wilfong, 121 Nev. 619, 622-23, 119 P.3d 727, 729-
30 (2005) (discussing the public policy rationale in support of awarding
attorney fees to pro bono counsel and concluding that such awards are
proper); Black v. Brooks, 827 N.W2d 256, 265 (Neb. 2013) (concluding that
if organizations are not awarded for recovery of statutory fees, they may
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decline to represent pro bono cases); see, e.g., New Jerseyans for a Death
Penalty Moratorium v. N.J. Dep't of Corr., 850 A.2d 530, 532 (N.J. Super.
Ct. App. Div. 2004) (explaining that when determining a reasonable fee to
award in a pro bono case, courts should consider whether to increase the
"fee to reflect the risk of nonpayment in all cases in which the attorney's
compensation entirely or substantially is contingent on a successful
outcome") (internal quotation marks omitted), affd as modified by 883 A.2d
329 (N.J. 2005).
Considerations when assessing an attorney fees award based on a
contingency fee agreement
Here, the district court determined that it could not award fees
without hourly billing records despite citing no legal authority for that
proposition. As discussed above, however, district courts may take almost
any sensible approach or apply any logical method to calculate "a reasonable
fee" to award as long as the court weighs the Brunzell factors. See Shuette,
121 Nev. at 864-65, 124 P.3d at 548-49 (internal quotation marks omitted).
As to the methods or approaches a district court may use to
determine a reasonable amount, there are certainly more considerations
than just hourly billing records. See Hsu v. Cty. of Clark, 123 Nev. 625, 637,
173 P.3d 724, 733 (2007) (remanding the issue of attorney fees to the district
court to determine a starting point and adjust the fee accordingly based on
several factors, including the "time taken away from other work," case-
imposed deadlines, how long the attorney worked with the client, the usual
fee and awards in similar cases, if the fee was contingent or hourly, the
amount of money at stake, and how desirable the case was to the attorneys
involved); see also RPC 1.5(a)(1)-(8) (listing factors to consider in deciding if
a fee is reasonable). Additionally, district courts can look at the facts before
them, such as what occurred at trial and the record a party produced in
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litigating a matter. See Herbst v. Humana Health Ins. of Nev., Inc., 105
Nev. 586, 591, 781 P.2d 762, 765 (1989) (reviewing an attorney's affidavit of
the number of hours of work performed and concluding that this document,
"combined with the fact that Herbst's attorney worked for two years on the
case, established 12 volumes of records on appeal, and engaged in a five day
trial should enable the court to make a reasonable determination of
attorney's fees").
In comparison here, the district court could consider the length
of time counsel represented O'Connell and the length of the trial. We note
that the appellate record was large and most of it pertained to the trial.
Also, based on the lower court record, there is evidence that O'Connell's
attorneys worked on the case in the form of motions they filed and at
pretrial hearings held after O'Connell's offer of judgment expired, as well
as at trial, which lasted seven days. Further, O'Connell's application
indicated that counsel had performed a considerable amount of work—
"hundreds of hours" on the case—and she included the contingency fee
agreement as part of her request for fees. 6 See generally RPC 3.3(a)(1)
6Although O'Connell did not provide a verified application or
affidavits to the district court to support her request for attorney fees, the
district court is not limited to considering affidavits in determining a
reasonable amount of attorney fees. Further, despite the lack of an affidavit
and based on O'Connell's representations in her application for fees, the
district court could have sworn in counsel at the hearing to accept testimony
supporting the fee request or possibly have taken judicial notice of certain
facts. See NRS 47.130; NRCP 43(c) (indicating that when a motion is based
on facts that are not in the record, the district court may decide the motion
based on the affidavits presented or oral testimony); Mardirossian, 62 Cal.
Rptr. 3d at 676 (accepting testimony from attorneys about the level of work
required). We note, however, that in addition to any other potential
evidence the district court may consider, O'Connell and other parties should
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(prohibiting an attorney from making "a false statement of fact or law to a
tribunal"); NRCP 11(b)(3) (indicating that, by submitting pleadings to the
court, parties are certifying that the facts contained within the document
"are likely to have evidentiary support"); compare NRS 18.110(1) (requiring
a verified memorandum of costs) with NRS 18.010 (awarding attorney fees
based on an agreement or statute, not a verified memorandum); see also
Mardirossian, 62 Cal. Rptr. 3d at 676 (accepting testimony from attorneys
about the level of work required); Weber v. Langholz, 46 Cal. Rptr. 2d 677,
683 (Ct. App. 1995) (noting that the trial court did not lack substantial
evidence for an attorney fees award even though there were no time records
or billing statements).
Furthermore, although NRS 18.010(3) dictates that a district
court may award attorney fees with or without additional evidence, the
district court's decision to require hourly billing records as a prerequisite to
determine if the fee request was reasonable and justified was itself
unreasonable as the court had presided over protracted litigation and
witnessed a lengthy trial in which O'Connell overcame numerous
challenges to prevail. See Cooke, 61 Nev. at 61, 114 P.2d at 89 (looking at
"the reasonable value of plaintiffs services from all the facts and
circumstances") Importantly, where, as here, a district court observes an
attorney successfully litigating in court, rarely should the court decide to
award no attorney fees when evaluating if fees based on a contingency fee
agreement are reasonable and justified in amount under the fourth Beattie
factor, assuming the factors as a whole weigh in favor of an award. See
Frazier, 131 Nev. at 644, 357 P.3d at 373.
provide district courts with affidavits or verified pleadings when seeking
attorney fees awards.
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Therefore, we conclude that, in this case, there were alternative
sources of information for the district court to rely upon to determine
whether the requested award was reasonable, even though hourly billing
records were not provided. Thus, the district court should not have
concluded that no attorney fees were warranted based on the absence of
hourly billing records alone and without holding an evidentiary hearing or
making a determination based upon all the information before it.
Accordingly, the denial of attorney fees must be reversed and the matter
remanded to the district court for further proceedings consistent with this
opinion.
We note that the cases and methods used within this opinion to
determine the amount of an attorney fees award are instructive and not
exhaustive. Trial courts should also keep in mind that their awards of
attorney fees should be made on a case-by-case basis by applying the
considerations described herein to the evidence provided, and that an
adequate record will be critical to facilitate appellate review. Cf. Logan v.
Abe, 131 Nev. 260, 266, 350 P.3d 1139, 1143 (2015) (noting that while the
district court has discretion, "the award must be supported by substantial
evidence").
Ultimately a party seeking attorney fees based on a contingency
fee agreement must provide or point to substantial evidence of counsel's
efforts to satisfy the Beattie and Brunzell factors. 7 On remand, if O'Connell
7 We note that the better—but not required—practice in a contingency
fee case is for an attorney to keep hourly statements or timely billing records
to later justify the requested fees. See, e.g., Copper Liquor, Inc. v. Adolph
Coors Co., 684 F.2d 1087, 1094 (5th Cir. 1982) (cautioning that representing
a client on a contingency fee basis is not a valid excuse for failure to keep
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cannot provide substantial evidence of the time reasonably spent on this
case, the district court can exercise its discretion to adjust the fee
accordingly, while also being mindful of all applicable considerations. See
Hsu, 123 Nev. at 637, 173 P.3d at 733; see also Hensley v. Eckerhart, 461
U.S. 424, 433 (1983) (explaining, in using the lodestar method, that the
district court may reduce an attorney fees award if the documentation of
the hours reasonably expended on the litigation is inadequate). Counsel
must show how their work helped accomplish the result achieved.
Additionally, O'Connell's claim for attorney fees is limited to those fees
earned post-offer. 8 See NRCP 68(0(2).
On remand, the district court should consider the proposed
amount of the attorney fees award based on the judgment and the
contingency fee agreement and evaluate the requested award based on the
work performed. The evidence does not need to be limited to documents and
may include what the trial court readily observed.
time records), overruled on other grounds by Int? Woodworkers of Am. v.
Champion Intl Corp., 790 F.2d 1174, 1180-81 (5th Cir. 1986).
8 0n appeal, O'Connell concedes that her award should be limited to
her post-offer fees. She estimates her request should accordingly be reduced
to $71,111.11. Her contingency fee agreement, however, also provided for a
50-percent fee if she was successful on appeal. Additionally, we note that
O'Connell did not retain the same counsel from the beginning of the case
until the end, and thus her current counsel is not automatically entitled to
fees based on the entire litigation. Cf. Van Cleave v. Osborne, Jenkins &
Gamboa, Chtd., 108 Nev. 885, 888, 840 P.2d 589, 592 (1992) (awarding
attorney fees to the firm that more efficiently resolved a matter, regardless
of the length of time of its representation, in comparison to the prior firm
that litigated the same case for six years without resolution). We leave the
consideration of these circumstances to the district court.
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CONCLUSION
Attorneys who represent a client on a contingency fee basis are
not required to submit hourly billing records to support an award of
attorney fees that are allowed by a valid agreement, rule, or statute.
Because the district court incorrectly based its decision to deny fees, in part,
on the second Beattie factor and on the failure to provide hourly billing
records with regard to the fourth Beattie factor, we conclude that the district
court abused its discretion in denying O'Connell's request. Accordingly, we
reverse the district court's order as to its complete denial of O'Connell's
request for attorney fees. We remand this matter for the district court to
allow O'Connell a new hearing related to her attorney fees request, and then
to address and reweigh the second, third, and fourth Beattie factors in light
of this opinion. If the Beattie factors favor O'Connell, we direct the district
court to determine a reasonable amount of attorney fees to award.
J.
Gibbons
We concur:
o
C.J.
Silver
Tao
1 Afoo'" J.
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