Digesti v. Third Judicial District Court

853 P.2d 118, 109 Nev. 532, 1993 Nev. LEXIS 82
CourtNevada Supreme Court
DecidedMay 27, 1993
DocketNo. 23959
StatusPublished

This text of 853 P.2d 118 (Digesti v. Third Judicial District Court) 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
Digesti v. Third Judicial District Court, 853 P.2d 118, 109 Nev. 532, 1993 Nev. LEXIS 82 (Neb. 1993).

Opinion

OPINION

Per Curiam:

This petition for a writ of mandamus challenges an order of the district court denying petitioner’s request for additional attorney’s fees earned while representing an indigent client.

Petitioner, Laurence Peter Digestí, was appointed by the district court to represent an indigent client. Petitioner’s client was charged with, among other things, manufacture of a controlled substance in violation of NRS 453.321, which is a felony punishable by a maximum sentence of imprisonment for life.

On June 29, 1992, petitioner filed in the district court a motion requesting interim attorney’s fees in excess of the statutory limit.1 [534]*534Petitioner documented that he spent 177.2 hours of work on the case and requested $10,632 in attorney’s fees based upon the NRS 7.125(1) rate of $60 per hour. Petitioner, however, mistakenly petitioned for fees in excess of the NRS 7.125(2)(b) limit applicable to less serious felonies, rather than the NRS 7.125(2)(a) limit applicable to felonies where the maximum punishment is life.

On June 29, 1992, the district court entered an order awarding $5,000 in attorney’s fees to petitioner. The order also proceeded under the erroneous impression that the applicable statutory limit was $2,500. The order concluded that fees in excess of $2,500 were warranted pursuant to NRS 7.125(4) and County of Clark v. Smith, 96 Nev. 854, 619 P.2d 1217 (1980).

Petitioner continued to represent the client through sentencing. On August 28, 1992, petitioner moved for reconsideration of his allowance for attorney’s fees, and included documentation of 13.1 additional hours of legal services. Petitioner requested total attorney’s fees of $11,418. Petitioner’s ground for reconsideration was that his original motion, and the court’s order, were incorrectly premised on the fee limit specified under NRS 7.125(2)(b).

On October 22, 1992, the district court denied petitioner’s motion for reconsideration, and concluded that:

[T]he dollar amounts listed in NRS 7.125(2) are maximum fees allowable and are in no manner mandates requiring the Court to grant the amounts stated. Determining the fees allowable in individual cases is within the Court’s discretion and may be granted in any amount up to the maximum provided by statute.
Mr. Digesti now asks the Court to reconsider its award in [535]*535light of the fact that the maximum this Court could allow is $12,000.00 rather than $2,500.00. The Court finds no reason to reconsider its initial allowance. As was clear in its Order, the Court was not restricted by the $2,500.00 limit because there were sufficient factors warranting an award in excess of that amount. The Court considered all of the factors and found $5,319.69 to be a fair and reasonable amount to be paid to Mr. Digestí. The analysis is no different now than it was before.

Petitioner contends that the district court has misapplied NRS 7.125 because Nevada judges do not have discretion to award “any amount” for time reasonably spent on a matter under the statutory limit. We agree.

A writ of mandamus is available to compel the performance of an act which the law requires as a duty resulting from an office, trust or station, NRS 34.160, or to control an arbitrary or capricious exercise of discretion. See Hickey v. District Court, 105 Nev. 729, 782 P.2d 1336 (1989). A writ of mandamus shall issue where there is not a plain, speedy and adequate remedy in the ordinary course of the law. NRS 34.170. An attorney who is appointed to represent an indigent client and is denied NRS 7.125 attorney’s fees lacks standing to appeal the order denying the fees. See Beury v. State of Nevada, 107 Nev. 363, 812 P.2d 774 (1991). Because such an attorney may have no legal remedy, this court’s discretionary review of the district court’s order may be appropriately invoked by a properly documented petition for extraordinary relief. Id.

NRS 7.125(1) provides that appointed counsel is “entitled to receive a fee for court appearances and other time reasonably spent on the matter to which the appointment is made, $60 per hour.” “Entitle” is defined as “to give a right or legal title to: qualify (one) for something: furnish with proper grounds for seeking or claiming something . . . .” Webster’s Third New International Dictionary 758 (4th ed. 1976). The plain language of NRS 7.125(1) grants appointed counsel a right to $60 per hour for time reasonably spent up to the statutory maximum. The district court must merely multiply the amount of reasonable hours spent on the matter by sixty dollars; this is not a discretionary act. See Dade County v. Goldstein, 384 So.2d 183 (Fla. Dist.Ct.App. 1981).

It appears, however, that the district court has interpreted NRS 7.125 to grant a court discretion to award “any amount up to the maximum provided by statute,” or any “fair and reasonable” fee [536]*536of the court’s own creation. This interpretation is erroneous. NRS 7.125(1) mandates, by the use of the word “entitled,” that an attorney is to receive $60 per hour for all time reasonably spent under the statutory limit. NRS 7.125 does not grant a court discretion to arbitrarily substitute its own award, whether reasonable or not, in place of the award required by NRS 7.125(1).2

NRS 7.125

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Related

Hickey v. Eighth Judicial District Court
782 P.2d 1336 (Nevada Supreme Court, 1989)
Lyon v. Walker Boudwin Construction Co.
503 P.2d 1219 (Nevada Supreme Court, 1972)
State v. Longjaw
761 P.2d 1331 (Oregon Supreme Court, 1988)
Beury v. STATE, EIGHTH JUD. DIST. COURT
812 P.2d 774 (Nevada Supreme Court, 1991)
County of Clark v. Smith
619 P.2d 1217 (Nevada Supreme Court, 1980)
Dade County v. Goldstein
384 So. 2d 183 (District Court of Appeal of Florida, 1980)

Cite This Page — Counsel Stack

Bluebook (online)
853 P.2d 118, 109 Nev. 532, 1993 Nev. LEXIS 82, Counsel Stack Legal Research, https://law.counselstack.com/opinion/digesti-v-third-judicial-district-court-nev-1993.