                                                       134 Nev., Advance Opinion        61
                         IN THE COURT OF APPEALS OF THE STATE OF NEVADA


                   YVONNE O'CONNELL, AN                                  No, 71789
                   INDIVIDUAL,
                   Appellant,
                   vs.
                                                                              FILED
                   WYNN LAS VEGAS, LLC, D/B/A WYNN                            AUG 3 8 2018
                   LAS VEGAS,
                   Respondent.
                                                                        BY
                                                                             CHIEF DERTIMCECE'RK



                              Appeal from a post-judgment order denying appellant's motion
                   for attorney fees and costs. Eighth Judicial District Court, Clark County;
                   Carolyn Ellsworth, Judge.
                              Reversed and remanded.


                   Nettles Law FirmS 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.




COURT OF APPEALS
         OF
      NEVADA


(0) 194711
                                                                                                   61c*
                                                    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.'
                   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 appeal was consolidated with the appeal in Docket No. 70583
                   prior to briefing. We now deconsolidate these appeals for the purposes of
                   disposition. Judgment was affirmed in Docket No. 70583.
COURT OF APPEALS
         OF
      NEVADA


(0) 1Y471i
                                                         2
                                 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,


                         2 The  district court partially awarded O'Connell her requested expert
                   witness fees. O'Connell argues on appeal that the district court should have
                   awarded her the entirety of those fees. O'Connell did not raise this
                   argument until her reply brief in her appeal. Therefore, we decline to
                   consider it now. See Weaver v. State, Dep't of Motor Vehicles, 121 Nev. 494,
                   502, 117 P.3d 193, 198-99 (2005) ("As this argument was raised only in
                   [appellant's] reply brief, we need not consider it."). All other points raised
                   on appeal not discussed herein are unpersuasive.
COURT OF APPEALS
        OF
      NEVADA


(0)
                                                          3
                   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

COURT OF APPEALS
         OF
      NEVADA


(0) 19,176
                                                         4
                   (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

COURT OF APPEALS
        OF
     NEVADA


(0) 19478    e                                            5
                   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
                   Commc'ns, 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

COURT OF APPEALS
                   under a specific rule or statute"). NRCP 68 establishes the rules regarding
        OF
     NEVADA


(0) 19478
                                                        6
                   offers of judgment. A party may serve an offer of judgment "fah 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(0(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 decisions for an abuse of discretion. Id. at
                   642, 357 P.3d at 372. The district court abuses its discretion when "the
                   court's evaluation of the Beattie factors is arbitrary or capricious." Id.
                                 The Beattie factors require the district court to evaluate:
                                 (1) whether the plaintiffs claim was brought in
                                 good faith; (2) whether the defendants' offer of
                                 judgment was reasonable and in good faith in both
                                 its timing and amount; (3) whether the plaintiffs
                                 decision to reject the offer and proceed to trial
                                 was grossly unreasonable or in bad faith; and
                                 (4) whether the fees sought by the offeror are
                                 reasonable and justified in amount.
                   Beattie, 99 Nev. at 588-89, 668 P.2d at 274. Beattie applies to plaintiffs and
                   defendants. See Yamaha Motor Co., U.S.A. v. Arnoult,         114 Nev. 233, 252,
                   955 P.2d 661, 673 (1998) (deciding that when the defendant is the offeree,
                   the court should consider if the defendant's defense was brought in good



COURT OF APPEALS
        OF
     NEVADA


(0) 19478    e                                             7
                   faith under the first factor and remanding for the district court to reconsider
                   liability issues when evaluating whether the defendant's rejection of the
                   offer was unreasonable or in bad faith under the third factor). When it is
                   determined that the first three Beattie factors weigh in favor of the party
                   who rejected the offer of judgment, the reasonableness of the requested fees
                   becomes irrelevant as the reasonableness of the fees alone cannot support
                   an attorney fees award. Frazier, 131 Nev. at 644, 357 P.3d at 373.
                               When considering the amount of attorney fees to award, the
                   analysis turns on the factors set forth in Brunzell. Of particular significance
                   to this case, Brunzell provides that "Ewthile hourly time schedules are
                   helpful in establishing the value of counsel services, other factors may be
                   equally significant." 85 Nev. at 349, 455 P.2d at 33. Brunzell directs lower
                   courts to consider the following when determining a reasonable amount of
                   attorney fees to award:
                               (1) the qualities of the advocate: his ability, his
                               training, education, experience, professional
                               standing and skill; (2) the character of the work to
                               be done: its difficulty, its intricacy, its importance,
                               time and skill required, the responsibility imposed
                               and the prominence and character of the parties
                               where they affect the importance of the litigation;
                               (3) the work actually performed by the lawyer: the
                               skill, time and attention given to the work; (4) the
                               result: whether the attorney was successful and
                               what benefits were derived.
                   Id. (internal quotation marks omitted). With these standards in mind, we
                   turn to the matter before us.




COURT OF APPEALS
        OF
     NEVADA


(0) (947B
                                                         8
                   The offer of judgment was reasonable and in good faith 3
                                   The district court concluded that the second Beattie factor
                   weighed in Wynn's favor because the court precluded O'Connell from
                   submitting "special medical damages at the time of trial," which made it
                   difficult for Wynn to determine the value of the case. The court also
                   concluded that the offer was unreasonable because O'Connell made it when
                   she did not have a proper damages calculation. O'Connell argues that she
                   had disclosed approximately $38,000 in medical damages at the time of her
                   offer. Wynn contends that O'Connell's damages should have been excluded
                   because of discovery issues, while O'Connell points to the significant
                   amount of discovery her attorneys completed before making the $49,999
                   offer.
                                   The second Beattie factor requires district courts to evaluate
                   "whether the. . . offer of judgment was reasonable and in good faith in both
                   its timing and amount." Beattie, 99 Nev. at 588, 668 P.2d at 274. "[T]here
                   is no bright-line rule that qualifies an offer of judgment as per se reasonable
                   in amount; instead, the district court is vested with discretion to consider
                   the adequacy of the offer and the propriety of granting attorney fees."




                            3 We
                               address only Beattie factors two and four in this opinion. On
                   appeal, O'Connell does not challenge the district court's ruling on the first
                   Beattie factor, and so we need not consider it. See Powell v. Liberty Mitt.
                   Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011) ("Issues
                   not raised in an appellant's opening brief are deemed waived.").
                   Additionally, Wynn did not respond to O'Connell's argument regarding the
                   third Beattie factor. Therefore, Wynn conceded this point, and thus, the
                   district court will need to reweigh this factor upon remand. See Bates v.
                   Chronister, 100 Nev. 675, 682, 691 P.2d 865, 870 (1984) (treating
                   respondent's failure to address one of appellant's arguments "as a
                   confession of error").
CoURT OF APPEALS
        OF
     NEVADA


(0) 19470    e                                             9
                   Certified Fire Prot., Inc. v. Precision Constr., Inc., 128 Nev. 371, 383, 283
                   P.3d 250, 258 (2012).
                               Here, the district court justified its decision to weigh the second
                   factor in Wynn's favor based on its conclusion that it had excluded evidence
                   of O'Connell's medical damages. This reasoning has two significant flaws.
                   First, as to timing, apart from its decision in its order denying O'Connell's
                   request for attorney fees, it is not apparent from the record that the district
                   court did in fact exclude O'Connell's medical damages. After it heard
                   Wynn's motion in limine seeking to exclude the medical damages before
                   trial, the court denied Wynn's motion without prejudice and deferred its
                   decision until trial, which was almost two months after O'Connell's offer of
                   judgment expired. Furthermore, on the first day of trial, O'Connell chose
                   not to seek medical damages, so it is unclear if an order was ever needed, or
                   entered, as one does not appear in the record. If the district court ever did
                   exclude the evidence, any exclusion occurred after O'Connell's offer of
                   judgment had expired. Therefore, Wynn did not know at the time it rejected
                   the offer of judgment that it would not face potential liability for medical
                   damages.
                               Second, as to the amount, whether O'Connell's medical
                   damages were excluded did not control her request for general damages,
                   which would include pain and suffering. Wynn had all of the necessary
                   information to evaluate O'Connell's claim as discovery had closed before she
                   made her offer. See Certified, 128 Nev. at 383, 283 P.3d at 258. Indeed,
                   Wynn risked the possibility of a large, six-figure verdict by rejecting
                   O'Connell's offer, regardless of the admissibility of her medical damages—
                   and that is exactly what happened. During closing arguments, O'Connell
                   asked the jury for a damages award in the six figures. She ultimately was
COUPT OF APPEALS
        OF
     NEVADA


(C9 19478                                                10
                   awarded $400,000, and still received a $240,000 judgment after fault was
                   apportioned—well above her $49,999 offer of judgment that Wynn rejected.
                   See generally RTTC, 121 Nev. at 37, 43, 110 P.3d at 26, 29 (concluding that
                   there was "ample support in the record to support the district court's
                   findings that both [respondent's] claim and offer of judgment were brought
                   in good faith" in a case in which respondent made a $45,000 offer of
                   judgment that was rejected, yet the respondent was ultimately awarded
                   153,333, plus interest").
                                Based on the foregoing, the district court abused its discretion
                   by mistakenly concluding that, because medical damages were precluded,
                   O'Connell did not have a basis for her offer or that Wynn could not properly
                   evaluate her offer. 4 See Dillard Dep't Stores, Inc. v. Beckwith, 115 Nev. 372,
                   382, 989 P.2d 882, 888 (1999) (highlighting that Thlhe purpose of. . NRCP
                   68 is to save time and money" and to "reward a party who makes a
                   reasonable offer and punish the party who refuses to accept such an offer").
                   Thus, the determination regarding the reasonableness of the offer as to
                   timing and amount was an abuse of discretion and must be reweighed on
                   remand in consideration of all of the factors when deciding whether fees are
                   warranted.




                          `Wynn argued below that O'Connell's various offers resulted in
                   "gamesmanship" and was one reason why Wynn could not give due weight
                   to her $49,999 offer of judgment. But this argument is unpersuasive as the
                   record suggests that Wynn did not give due weight to any of O'Connell's
                   offers. O'Connell's $49,999 offer was close to her two most recently disclosed
                   medical damages at the time ($33,000 in medical damages followed by a
                   later disclosed $38,000 in medical damages). In comparison, Wynn only
                   made a $3,000 offer of judgment when O'Connell disclosed an estimated
                   $29,000 in medical expenses.
COURT OF APPEALS
        OF
     NEVADA


(0) 1947B
                                                         11
                   The district court abused its discretion by limiting its review of the
                   reasonableness of O'Connell's fees to whether hourly billing records were
                   submitted
                               We now turn to the fourth Beattie factor to determine "whether
                   the fees sought by the offeror are reasonable and justified in amount."
                   Beattie, 99 Nev. at 589, 668 P.2d at 274. As discussed above, courts apply
                   the Brunzell factors within their analysis of the fourth Beattie factor to
                   determine a reasonable amount of attorney fees. Brunzell, 85 Nev. at 349,
                   455 P.2d at 33. Here, the district court concluded that, because O'Connell
                   did not provide bills detailing the tasks executed and hours expended to
                   complete those tasks, it could not determine if the requested fee was
                   reasonable based on the work performed.
                               We first address whether an attorney, who litigated a matter
                   based on a contingency fee agreement, is required to produce hourly billing
                   records to receive an attorney fees award. We conclude that such records
                   are not required. We then provide guidance as to how trial courts can
                   evaluate a fee request based on a contingency fee agreement that does not
                   include hourly billing statements.
                         Hourly billing records are not required to support an award of attorney
                         fees based on a contingency fee agreement
                               Nevada law does not require billing records with every attorney
                   fees request. The law only requires the trial court to calculate "a reasonable
                   fee." Shuette, 121 Nev. at 864, 124 P.3d at 548 (internal quotation marks
                   omitted); NRCP 68(0(2) (allowing an offeror reasonable attorney fees); see
                   also NRCP 54(d)(2)(B) (requiring "a fair estimate of' the reasonable
                   attorney fees). "[fin determining the amount of fees to award, the court is
                   not limited to one specific approach; its analysis may begin with any method
                   rationally designed to calculate a reasonable amount, including those based

COURT OF APPEALS
                   on a 'lodestar' amount or a contingency fee." Shuette, 121 Nev. at 864, 124
        OF
     NEVADA


(0) 19478
                                                        12
                   P.3d at 549 (emphasis added) (citation omitted). 5 The district court must
                   properly weigh the Brunzell factors in deciding what amount to award. Id.
                   at 864-65, 124 P.3d at 549. "In this manner, whichever method the court
                   ultimately uses, the result will prove reasonable as long as the court
                   provides sufficient reasoning and findings in support of its ultimate
                   determination." Id. at 865, 124 P.3d at 549.
                                In Cooke v. Gove, the Nevada Supreme Court upheld an
                   attorney fees award based on "the reasonable value" of the attorney's
                   services, even though the case was taken on a contingency fee basis with no
                   formal agreement. 61 Nev. 55, 61, 114 P.2d 87, 89 (1941). The "evidence"
                   to support the fee was the case file from the successful matter, some of the
                   letters between the client and attorney, and two depositions from other
                   attorneys about the value of the appellant's services. Id. at 57, 114 P.2d at
                   88. The court noted that the reasonable fee was based on the trial court's
                   evaluation of "the reasonable value of plaintiffs services from all the facts
                   and circumstances" after the court considered how the plaintiffs "work,
                   thought and skill contributed" to the successful outcome. Id. at 61, 114 P.2d
                   at 89 (internal quotation marks omitted).
                               Thus, the district court is not confined to authorizing an award
                   of attorney fees exclusively from billing records or hourly statements.    See
                   Shuette, 121 Nev. at 864-65, 124 P.3d at 548-49; Brunzell, 85 Nev. at 349,
                   455 P.2d at 33. Rather, limiting the source for the calculation primarily to
                   billing records is too restrictive. See generally Shuette, 121 Nev. at 864, 124



                         The lodestar method "involves multiplying the number of hours
                         5
                   reasonably spent on the case by a reasonable hourly rate." Shuette, 121 Nev.
                   at 864 n.98, 124 P.3d at 549 n.98 (emphasis added) (internal quotation
                   marks omitted).
COURT OF APPEALS
       OF
    NEVADA


SU 19478    .40:                                         13
                    P.3d at 549 (stating that there is no one approach to determining the
                    amount of attorney fees). Accordingly, a trial court can award attorney fees
                    to the prevailing party who was represented under a contingency fee
                    agreement, even if there are no hourly billing records to support the request.
                                We note that our conclusion is in line with other jurisdictions
                    that squarely address awarding attorney fees based on a contingency fee
                    agreement. For example, in McNeel v. Farm Bureau General Insurance Co.,
                    the Michigan Court of Appeals reversed a trial court's decision to reduce an
                    award of fees to an attorney who represented a client on a contingency fee
                    basis because the "court gave only mild consideration to the complexity of
                    the case" and did not factor in the required attorney preparation. 795
                    N.W.2d 205, 221 (Mich. Ct. App. 2010). The McNeel court outlined what
                    the trial court could do when reviewing a fee without billable hour
                    statements: "The trial court can certainly consider the type of case, the
                    length of the trial, the difficulty of the case, the numbers and types of
                    witnesses, as well as other relevant factors. . . ."    Id. at 220 (internal
                    quotation marks omitted). Similarly, in California, billing records are not
                    always required. See Mardirossian & Assocs., Inc. v. Ersoff, 62 Cal. Rptr.
                    3d 665, 676 (Ct. App. 2007) (concluding that the trial court did not abuse its
                    discretion in an attorney fees award case, in part, because, despite a lack of
                    billing records, the Mardirossian attorneys had personal knowledge of the
                    legal work they performed and "each testified at length concerning the work
                    he or she performed, the complexity of the issues and the extent of the work
                    that was required").
                                Courts have recognized an additional reason that supports
                    awarding attorney fees—the risks attorneys take by offering or accepting
                    contingency fee agreements.     See King v. Fox, 851 N.E.2d 1184, 1191-92

COURT OF APPEALS
        OF
     NEVADA


(0) 19475    .44E                                         14
                   (N.Y. 2006) ("In entering into contingent fee agreements, attorneys risk
                   their time and resources in endeavors that may ultimately be fruitless.
                   Moreover, it is well settled that the client may terminate [the contingency
                   fee agreement] at any time, leaving the lawyer no cause of action for breach
                   of contractU only quantum meruit." (first alteration in original) (citation
                   and internal quotation marks omitted)); see also Scheme v. Reliable
                   Collection Agency, Ltd., 32 P.3d 52, 96-97 (Haw. 2001) (concluding that fee
                   awards can be justified based on the risks associated with accepting a case
                   on a contingency fee basis). Courts should also account for the greater risk
                   of nonpayment for attorneys who take contingency fee cases, in comparison
                   to attorneys who bill and are paid on an hourly basis, as they normally
                   obtain assurances they will receive payment. See Rendine v. Pantzer, 661
                   A.2d 1202, 1228 (N.J. 1995) (recognizing that rewarding a lawyer for taking
                   a case for which compensation is contingent on the outcome is based in part
                   on providing a monetary incentive for taking such cases because an hourly
                   fee is more attractive unless such an extra incentive exists).
                               Additionally, contingency fees allow those who cannot afford an
                   attorney who bills at an hourly rate to secure legal representation.        See
                   King, 851 N.E.2d at 1191 ("Contingent fee agreements between attorneys
                   and their clients . . . generally allow a client without financial means to
                   obtain legal access to the civil justice system."). Relatedly, attorney fees are
                   permissible in pro bono cases, where there are likewise no billing
                   statements. See Miller v. Wilfong, 121 Nev. 619, 622-23, 119 P.3d 727, 729-
                   30 (2005) (discussing the public policy rationale in support of awarding
                   attorney fees to pro bono counsel and concluding that such awards are
                   proper); Black v. Brooks, 827 N.W2d 256, 265 (Neb. 2013) (concluding that
                   if organizations are not awarded for recovery of statutory fees, they may
COURT OF APPEALS
        OF
     NEVADA


(0) 19478
                                                         15
                   decline to represent pro bono cases); see, e.g., New Jerseyans for a Death
                   Penalty Moratorium v. N.J. Dep't of Corr., 850 A.2d 530, 532 (N.J. Super.
                   Ct. App. Div. 2004) (explaining that when determining a reasonable fee to
                   award in a pro bono case, courts should consider whether to increase the
                   "fee to reflect the risk of nonpayment in all cases in which the attorney's
                   compensation entirely or substantially is contingent on a successful
                   outcome") (internal quotation marks omitted), affd as modified by 883 A.2d
                   329 (N.J. 2005).
                         Considerations when assessing an attorney fees award based on a
                         contingency fee agreement
                                Here, the district court determined that it could not award fees
                   without hourly billing records despite citing no legal authority for that
                   proposition. As discussed above, however, district courts may take almost
                   any sensible approach or apply any logical method to calculate "a reasonable
                   fee" to award as long as the court weighs the Brunzell factors. See Shuette,
                   121 Nev. at 864-65, 124 P.3d at 548-49 (internal quotation marks omitted).
                               As to the methods or approaches a district court may use to
                   determine a reasonable amount, there are certainly more considerations
                   than just hourly billing records. See Hsu v. Cty. of Clark, 123 Nev. 625, 637,
                   173 P.3d 724, 733 (2007) (remanding the issue of attorney fees to the district
                   court to determine a starting point and adjust the fee accordingly based on
                   several factors, including the "time taken away from other work," case-
                   imposed deadlines, how long the attorney worked with the client, the usual
                   fee and awards in similar cases, if the fee was contingent or hourly, the
                   amount of money at stake, and how desirable the case was to the attorneys
                   involved); see also RPC 1.5(a)(1)-(8) (listing factors to consider in deciding if
                   a fee is reasonable). Additionally, district courts can look at the facts before
                   them, such as what occurred at trial and the record a party produced in
COURT OF APPEALS
        OF
     NEVADA


KO) 1947B
                                                          16
                   litigating a matter. See Herbst v. Humana Health Ins. of Nev., Inc., 105
                   Nev. 586, 591, 781 P.2d 762, 765 (1989) (reviewing an attorney's affidavit of
                   the number of hours of work performed and concluding that this document,
                   "combined with the fact that Herbst's attorney worked for two years on the
                   case, established 12 volumes of records on appeal, and engaged in a five day
                   trial should enable the court to make a reasonable determination of
                   attorney's fees").
                                In comparison here, the district court could consider the length
                   of time counsel represented O'Connell and the length of the trial. We note
                   that the appellate record was large and most of it pertained to the trial.
                   Also, based on the lower court record, there is evidence that O'Connell's
                   attorneys worked on the case in the form of motions they filed and at
                   pretrial hearings held after O'Connell's offer of judgment expired, as well
                   as at trial, which lasted seven days. Further, O'Connell's application
                   indicated that counsel had performed a considerable amount of work—
                   "hundreds of hours" on the case—and she included the contingency fee
                   agreement as part of her request for fees. 6 See generally RPC 3.3(a)(1)



                         6Although     O'Connell did not provide a verified application or
                   affidavits to the district court to support her request for attorney fees, the
                   district court is not limited to considering affidavits in determining a
                   reasonable amount of attorney fees. Further, despite the lack of an affidavit
                   and based on O'Connell's representations in her application for fees, the
                   district court could have sworn in counsel at the hearing to accept testimony
                   supporting the fee request or possibly have taken judicial notice of certain
                   facts. See NRS 47.130; NRCP 43(c) (indicating that when a motion is based
                   on facts that are not in the record, the district court may decide the motion
                   based on the affidavits presented or oral testimony); Mardirossian, 62 Cal.
                   Rptr. 3d at 676 (accepting testimony from attorneys about the level of work
                   required). We note, however, that in addition to any other potential
                   evidence the district court may consider, O'Connell and other parties should
COURT OF APPEALS
        OF
     NEVADA


(0) 1947B
                                                         17
                   (prohibiting an attorney from making "a false statement of fact or law to a
                   tribunal"); NRCP 11(b)(3) (indicating that, by submitting pleadings to the
                   court, parties are certifying that the facts contained within the document
                   "are likely to have evidentiary support"); compare NRS 18.110(1) (requiring
                   a verified memorandum of costs) with NRS 18.010 (awarding attorney fees
                   based on an agreement or statute, not a verified memorandum); see also
                   Mardirossian, 62 Cal. Rptr. 3d at 676 (accepting testimony from attorneys
                   about the level of work required); Weber v. Langholz, 46 Cal. Rptr. 2d 677,
                   683 (Ct. App. 1995) (noting that the trial court did not lack substantial
                   evidence for an attorney fees award even though there were no time records
                   or billing statements).
                               Furthermore, although NRS 18.010(3) dictates that a district
                   court may award attorney fees with or without additional evidence, the
                   district court's decision to require hourly billing records as a prerequisite to
                   determine if the fee request was reasonable and justified was itself
                   unreasonable as the court had presided over protracted litigation and
                   witnessed a lengthy trial in which O'Connell overcame numerous
                   challenges to prevail. See Cooke, 61 Nev. at 61, 114 P.2d at 89 (looking at
                   "the reasonable value of plaintiffs services from all the facts and
                   circumstances") Importantly, where, as here, a district court observes an
                   attorney successfully litigating in court, rarely should the court decide to
                   award no attorney fees when evaluating if fees based on a contingency fee
                   agreement are reasonable and justified in amount under the fourth Beattie
                   factor, assuming the factors as a whole weigh in favor of an award.          See
                   Frazier, 131 Nev. at 644, 357 P.3d at 373.


                   provide district courts with affidavits or verified pleadings when seeking
                   attorney fees awards.
COURT OF APPEALS
        OF
     NEVADA


(0) 19475
                                                          18
                                 Therefore, we conclude that, in this case, there were alternative
                   sources of information for the district court to rely upon to determine
                   whether the requested award was reasonable, even though hourly billing
                   records were not provided. Thus, the district court should not have
                   concluded that no attorney fees were warranted based on the absence of
                   hourly billing records alone and without holding an evidentiary hearing or
                   making a determination based upon all the information before it.
                   Accordingly, the denial of attorney fees must be reversed and the matter
                   remanded to the district court for further proceedings consistent with this
                   opinion.
                                 We note that the cases and methods used within this opinion to
                   determine the amount of an attorney fees award are instructive and not
                   exhaustive. Trial courts should also keep in mind that their awards of
                   attorney fees should be made on a case-by-case basis by applying the
                   considerations described herein to the evidence provided, and that an
                   adequate record will be critical to facilitate appellate review.   Cf. Logan v.
                   Abe, 131 Nev. 260, 266, 350 P.3d 1139, 1143 (2015) (noting that while the
                   district court has discretion, "the award must be supported by substantial
                   evidence").
                                 Ultimately a party seeking attorney fees based on a contingency
                   fee agreement must provide or point to substantial evidence of counsel's
                   efforts to satisfy the Beattie and Brunzell factors. 7 On remand, if O'Connell



                         7 We  note that the better—but not required—practice in a contingency
                   fee case is for an attorney to keep hourly statements or timely billing records
                   to later justify the requested fees. See, e.g., Copper Liquor, Inc. v. Adolph
                   Coors Co., 684 F.2d 1087, 1094 (5th Cir. 1982) (cautioning that representing
                   a client on a contingency fee basis is not a valid excuse for failure to keep
COURT OF APPEALS
        OF
     NEVADA


(0) 19478
                                                          19
                   cannot provide substantial evidence of the time reasonably spent on this
                   case, the district court can exercise its discretion to adjust the fee
                   accordingly, while also being mindful of all applicable considerations. See
                   Hsu, 123 Nev. at 637, 173 P.3d at 733; see also Hensley v. Eckerhart, 461
                   U.S. 424, 433 (1983) (explaining, in using the lodestar method, that the
                   district court may reduce an attorney fees award if the documentation of
                   the hours reasonably expended on the litigation is inadequate). Counsel
                   must show how their work helped accomplish the result achieved.
                   Additionally, O'Connell's claim for attorney fees is limited to those fees
                   earned post-offer. 8 See NRCP 68(0(2).
                                On remand, the district court should consider the proposed
                   amount of the attorney fees award based on the judgment and the
                   contingency fee agreement and evaluate the requested award based on the
                   work performed. The evidence does not need to be limited to documents and
                   may include what the trial court readily observed.




                   time records), overruled on other grounds by Int? Woodworkers of Am. v.
                   Champion Intl Corp., 790 F.2d 1174, 1180-81 (5th Cir. 1986).

                         8 0n  appeal, O'Connell concedes that her award should be limited to
                   her post-offer fees. She estimates her request should accordingly be reduced
                   to $71,111.11. Her contingency fee agreement, however, also provided for a
                   50-percent fee if she was successful on appeal. Additionally, we note that
                   O'Connell did not retain the same counsel from the beginning of the case
                   until the end, and thus her current counsel is not automatically entitled to
                   fees based on the entire litigation. Cf. Van Cleave v. Osborne, Jenkins &
                   Gamboa, Chtd., 108 Nev. 885, 888, 840 P.2d 589, 592 (1992) (awarding
                   attorney fees to the firm that more efficiently resolved a matter, regardless
                   of the length of time of its representation, in comparison to the prior firm
                   that litigated the same case for six years without resolution). We leave the
                   consideration of these circumstances to the district court.
COURT OF APPEALS
        OF
     NEVADA


(0) 19478    e                                          20
                                                   CONCLUSION
                                  Attorneys who represent a client on a contingency fee basis are
                   not required to submit hourly billing records to support an award of
                   attorney fees that are allowed by a valid agreement, rule, or statute.
                   Because the district court incorrectly based its decision to deny fees, in part,
                   on the second Beattie factor and on the failure to provide hourly billing
                   records with regard to the fourth Beattie factor, we conclude that the district
                   court abused its discretion in denying O'Connell's request. Accordingly, we
                   reverse the district court's order as to its complete denial of O'Connell's
                   request for attorney fees. We remand this matter for the district court to
                   allow O'Connell a new hearing related to her attorney fees request, and then
                   to address and reweigh the second, third, and fourth Beattie factors in light
                   of this opinion. If the Beattie factors favor O'Connell, we direct the district
                   court to determine a reasonable amount of attorney fees to award.



                                                                                          J.
                                                          Gibbons


                   We concur:
                              o


                                                     C.J.
                   Silver



                   Tao
                             1 Afoo'"                J.




COURT OF APPEALS
      OF
    NEVADA

                                                            21
