Collins v. Murphy

951 P.2d 598, 113 Nev. 1380, 1997 Nev. LEXIS 165
CourtNevada Supreme Court
DecidedDecember 30, 1997
DocketNo. 28146
StatusPublished
Cited by4 cases

This text of 951 P.2d 598 (Collins v. Murphy) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Collins v. Murphy, 951 P.2d 598, 113 Nev. 1380, 1997 Nev. LEXIS 165 (Neb. 1997).

Opinion

[1381]*1381OPINION

Per Curiam:

The dispute underlying the award of attorney’s fees at issue here involved conflicting claims to furniture and equipment removed from the Board of Trade restaurant.

In July 1989, Walt Collins, Inc. (“WCI”) sold the Board of Trade restaurant, including all fixtures, furniture, and equipment, to Restaurant Development Company (“RDC”) for $225,000.00. WCI had leased the premises on which the restaurant was located from Heitman Real Estate Fund II and Heitman Nevada Management, Inc. (collectively “Heitman”); its rights under this lease were also transferred to RDC. The purchase money was obtained through a loan from Valley Bank of Nevada (“Valley Bank”). Valley Bank secured this loan with an interest in the inventory, equipment, and furniture of the Board of Trade.

WCI remained obliged to pay rent to Heitman should RDC default under the lease. Consequently, RDC placed in escrow an assignment and bill of sale which, in the event RDC defaulted on the performance of its duties under the lease, would transfer to WCI all personal property located within the Board of Trade.

In November 1989, Robert E. Murphy (“Murphy”) became a substitute guarantor on RDC’s note to Valley Bank. In January 1991, Valley Bank transferred its interest in the collateral securing this note to Murphy. In 1990, RDC defaulted on the lease and on its note to Valley Bank. Soon thereafter RDC filed for bankruptcy. Murphy paid Valley Bank approximately $160,000.00 pursuant to his guaranty.

On October 18, 1990, Heitman, through Robert Vohl (“Vohl”), its attorney, notified Murphy’s attorney that Heitman sought to relet the property as soon as possible. He requested that Murphy remove all his personal property from the premises within five days of the time the bankruptcy court authorized the trustee to reject the lease. On November 14, 1990, the bankruptcy court authorized the rejection. On February 1, 1991, Vohl again wrote Murphy’s attorney, informing him that a new tenant had been found and demanding that Murphy remove his personal property from the premises. In this letter, Vohl referred to negotiations in which Heitman had offered to purchase Murphy’s interest in the property for $50,000.00, but Murphy had stated that he would not sell for less than $178,000.00. Vohl stated in this letter [1382]*1382that if Murphy failed to remove the property by February 11, 1991, Heitman would be obliged to remove it at his own expense. This letter was accompanied by an inventory of the personal property which, in Heitman’s view, Murphy owned.

On February 15, 1991, Vohl wrote to both Murphy’s attorney and WCI’s attorney. In this letter, Vohl notes that both WCI and Murphy had made claims to the property. Vohl also notified the two claimants that if they did not remove the property by February 28, 1991, Heitman would remove it and seek reimbursement for its trouble.

On February 28, 1991, Vohl again wrote to Murphy’s attorney, warning him that if he did not remove the property immediately, he risked forfeiting his interest in it. On March 15, 1991, Heitman permitted appellant Walt Collins (“Collins”), acting individually and not on behalf of WCI, to enter the premises and remove the property at issue.

On June 23, 1993, Murphy and RDC (collectively “respondents”) filed a complaint for conversion, breach of contract, and unjust enrichment, naming Collins and Heitman (collectively “appellants”) as defendants. On January 6, 1995, appellants moved for summary judgment. On January 25, 1995, respondents countermoved for partial summary judgment as to the defendants’ liability on the conversion and unjust enrichment claims. On January 27, 1995, respondents made two offers of judgment for $46,000.00, one to Heitman Nevada Management, Inc., and one to Heitman Real Estate Fund II. Respondents contend that they intended this to act as a single offer to settle with both Heitman defendants for $46,000.00 rather than $92,000.00. On March 5, 1995, the court granted partial summary judgment to respondents as to the questions of liability, determining that Murphy’s interest in the property had priority over that of Collins.

The case proceeded to a bench trial. Respondents requested $178,000.00 in damages. Appellants argued that the grant of partial summary judgment had not resolved all the liability issues. Appellants also vigorously contested respondents’ estimation of damages. On June 14, 1995, after a three-day bench trial, the court awarded respondents $2,000.00 in damages. Respondents moved to amend the court’s order on June 30, 1995. On August 31, 1995, the court granted this motion in part, boosting the damage award to $5,125.00. On September 8, 1995, appellants filed the notice of entry of judgment.

On October 16, 1995, respondents moved for an award of attorney’s fees. On December 26, 1995, the court ordered appellants to pay respondents $49,928.50 in attorney’s fees pursuant to [1383]*1383NRS 18.010(2)(a).1 Appellants filed their notice of appeal of this order on January 24, 1996.

DISCUSSION

Appellants contend that the district court abused its discretion by awarding attorney’s fees to respondents. Appellants argue that this court should adopt certain Arizona case law under which, appellants argue, the award of attorney’s fees would not have been justified. Although we do not adopt the Arizona rule at issue here, we agree that the district court abused its discretion in awarding attorney’s fees to respondents.

It is well settled that an award of attorney’s fees to a prevailing party under NRS 18.010(2)(a) is within the discretion of the district court. Cormier v. Manke, 108 Nev. 316, 317, 830 P.2d 1327, 1328 (1992). Furthermore, unless there is a manifest abuse of discretion, a district court’s award of attorney’s fees will not be set aside. Nelson v. Peckham Plaza Partnerships, 110 Nev. 23, 26, 866 P.2d 1138, 1139-40 (1994). An abuse of discretion is “[a] clear ignoring by the court of [applicable legal principles], without apparent justification.” Hotel Last Frontier v. Frontier Prop., Inc., 79 Nev. 150, 154, 380 P.2d 293, 294 (1963).

Appellants urge this court to adopt the rule enunciated in Associated Indemnity v. Warner, 694 P.2d 1181 (Ariz. 1985). In Associated Indemnity, the Arizona Supreme Court set forth six factors to be considered by the trial court in determining whether to award attorney’s fees under ARS 12-341.012, a statute which provides for the discretionary award of attorney’s fees to the prevailing party in contract actions, regardless of the amount of recovery. The district court in this case based its award of attorney’s fees on NRS 18.010(2)(a), which provides for an award of attorney’s fees to a prevailing party who has recovered [1384]*1384less than $20,000.00.

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Bluebook (online)
951 P.2d 598, 113 Nev. 1380, 1997 Nev. LEXIS 165, Counsel Stack Legal Research, https://law.counselstack.com/opinion/collins-v-murphy-nev-1997.