O'Connell v. Wynn Las Vegas, LLC

429 P.3d 664
CourtCourt of Appeals of Nevada
DecidedAugust 30, 2018
DocketNo. 71789
StatusPublished
Cited by11 cases

This text of 429 P.3d 664 (O'Connell v. Wynn Las Vegas, LLC) is published on Counsel Stack Legal Research, covering Court of Appeals of Nevada primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
O'Connell v. Wynn Las Vegas, LLC, 429 P.3d 664 (Neb. Ct. App. 2018).

Opinion

By the Court, GIBBONS, J.:

*666Yvonne 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 *667damages. 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.

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Bluebook (online)
429 P.3d 664, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oconnell-v-wynn-las-vegas-llc-nevapp-2018.