Songer v. Delucchi

IN THE SUPREME COURT OF THE STATE OF NEVADA
PAT SONGER, No. 67414
Appellant,
vs.
FILED
RAYMOND DELUCCHI; AND TOMMY JUN 2 3 2016
HOLLIS,
TRACE K. LINDEMAN
Respondents. CLERK OF SUPREME COURT
BY _ DEPUTY CLE
ORDER VACATING JUDGMENT AND REMANDING
This is an appeal from a district court order awarding attorney
fees and costs. Fifth Judicial District Court, Nye County; Kimberly A.
Wanker, Judge.
In the challenged order, the district court relied on a
comparison of appellant Pat Songer's billed attorney fees with those of his
codefendant, rather than awarding fees based on the factors outlined in
Brunzell v. Golden Gate National Bank, 85 Nev. 345, 349 455 P.2d 31, 33
(1969) (identifying factors the district court must consider when making
an award of reasonable attorney fees). Songer argues that this court
should adopt the prevailing market rate as the measure for determining a
reasonable rate in awarding attorney fees in pro bono, government, and
insurance defense cases. We decline to do so and we conclude that the
district court abused its discretion by failing to adequately address the
Brunzell factors and by failing to provide sufficient reasoning and findings
in support of its decision to award attorney fees. See Gunderson v. D.R.
Horton, Inc., 130 Nev., Adv. Op. 9, 319 P.3d 606, 615 (2014) (recognizing
that appellate courts review attorney fee awards for an abuse of
discretion); Shuette v. Beazer Homes Holdings Corp., 121 Nev. 837, 864-65,
124 P.3d 530, 548-49 (2005) (concluding that district courts may use any
method rationally designed to calculate a reasonable rate for attorney fees,
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and that rate will prove reasonable so long as the district court considers
the amount in light of the factors enumerated in Brunzell).
Although findings may be implied if the record is clear, Pease
v. Taylor, 86 Nev. 195, 197, 467 P.2d 109, 110 (1970), the record on appeal
in this case does not clearly demonstrate that the district court considered
the factors or include evidence that clearly supports the amount of fees
awarded. See Logan v. Abe, 131 Nev., Adv. Op 31, 350 P.3d 1139, 1143
(2015) (providing that when assessing the reasonableness of a request for
attorney fees under Brunzell, explicit findings on each factor are not
required, but the district court must demonstrate that it considered the
required factors and the award must be supported by substantial
evidence). As a result, we conclude that the award of attorney fees was an
abuse of discretion. Accordingly, we vacate the judgment of fees and costs
and remand this matter to the district court with instruction to follow the
Brunzell factors and to make written factual findings to support the award
of attorney fees. 1
It is so ORDERED.
Douglas
J.
Gibbons
'We have considered the parties' remaining arguments and conclude
that they are without merit.
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cc: Hon. Kimberly A. Wanker, District Judge
Carolyn Worrell, Settlement Judge
Lipson Neilson Cole Seltzer & Garin, P.C.
Law Office of Daniel Marks
Nye County Clerk
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