O'Connell v. Wynn Las Vegas, LLC

• Decision Date: 30 August 2018
• Docket Number: No. 71789,71789
• Parties: Yvonne O’CONNELL, an individual, Appellant, v. WYNN LAS VEGAS, LLC, d/b/a Wynn Las Vegas, Respondent.
• Court: Nevada Court of Appeals

429 P.3d 664

Yvonne O’CONNELL, an individual, Appellant,

v.WYNN LAS VEGAS, LLC, d/b/a Wynn Las Vegas, Respondent.

No. 71789

Court of Appeals of Nevada.

FILED AUGUST 30, 2018

Nettles Law Firm 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.

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.¹ 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 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, 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 (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 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 Communications, 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 under a specific rule or statute"). NRCP 68 establishes the rules regarding offers of judgment. A party may serve an offer of judgment "[a]t 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(f)(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...