McDonald Carano Wilson v. Bourassa Law Grp. , 2015 NV 90 ( 2015 )

131 Nev., Advance Opinion (TO
IN THE SUPREME COURT OF THE STATE OF NEVADA
MCDONALD CARANO WILSON LLP, A No. 64658
NEVADA LIMITED LIABILITY
PARTNERSHIP,
Appellant, ti 5
vs.
THE BOURASSA LAW GROUP, LLC; DEC 0 3 2015
OASIS LEGAL FINANCE, LLC, A
1RA L MDEMAN
FOREIGN ILLINOIS LIMITED CLEF' .C,Oldin
'MA I
LIABILITY COMPANY; CALIFORNIA BY
C',111EF D
BACK SPECIALISTS MEDICAL
GROUP, INC., A CALIFORNIA
CORPORATION; CALIFORNIA
MINIMALLY INVASIVE SURGERY
CENTER; THOUSAND OAKS SPINE
MEDICAL GROUP, INC., A
CALIFORNIA CORPORATION;
CONEJO NEUROLOGICAL MEDICAL
GROUP, INC., A CALIFORNIA
CORPORATION; AND MEDICAL
IMAGING MEDICAL GROUP,
Respondents.
Appeal from a district court order in an interpleader action.
Eighth Judicial District Court, Clark County; Ronald J. Israel, Judge.
Reversed and remanded.
McDonald Carano Wilson LLP and Rory Kay, George F. Ogilvie, III, and
Patrick J. Murch, Las Vegas,
for Appellant.
The Bourassa Law Group, LLC, and Mark J. Bourassa and Christopher
W. Carson, Las Vegas,
for Respondent The Bourassa Law Group, LLC.
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Boyack & Taylor and Edward D. Boyack, Las Vegas,
for Respondent Oasis Legal Finance, LLC.
California Back Specialists Medical Group, Inc.; California Minimally
Invasive Surgery Center; Thousand Oaks Spine Medical Group, Inc.;
Conejo Neurological Medical Group, Inc.; and Medical Imaging Medical
Group,
in Pro Se.
BEFORE PARRAGUIRRE, DOUGLAS and CHERRY, JJ.
OPINION
By the Court, PARRAGUIRRE, J.:
NRS 18.015 provides that "faln attorney at law shall have a
lien ... [u]pon any claim, demand or cause of action. . . which has been
placed in the attorney's hands by a client for suit or collection," and that
lien "attaches to any verdict, judgment or decree entered and to any
money or property which is recovered on account of the suit or other
action." NRS 18.015(1)(a), (4)(a). Here, we are asked to determine
whether NRS 18.015 allows an attorney to enforce a charging lien even if
that attorney withdrew before her client secured some form of recovery.
We conclude that NRS 18.015 allows an attorney to enforce a charging lien
against a client's affirmative recovery, even if that attorney withdrew
before recovery occurred. Accordingly, we reverse the district court's order
to the contrary and remand for further proceedings.
FACTS
This appeal arises from an order refusing to enforce appellant
McDonald Carano Wilson LLP's (McDonald Carano) charging lien against
its former client's settlement funds. Robert Cooper initially retained
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McDonald Carano to represent him in a personal injury action. After
three years of representation, the district court granted McDonald
Carano's motion to withdraw. McDonald Carano took steps to perfect a
charging lien for more than $100,000 in attorney fees plus costs.
Thereafter, Cooper retained The Bourassa Law Group (Bourassa), which
obtained a $55,000 settlement for Cooper. Bourassa filed an interpleader
action seeking proper distribution of the settlement funds among several
claimants, including McDonald Carano. The district court concluded that
McDonald Carano could not enforce its charging lien because it withdrew
before settlement occurred. McDonald Carano appealed
DISCUSSION
This court has not yet determined whether an attorney's
withdrawal prevents her from enforcing a charging lien under NRS
18.015. We review questions of statutory interpretation de novo. DR.
Horton, Inc. v. Eighth Judicial Dist. Court, 123 Nev. 468, 476, 168 P.3d
731, 737 (2007). "When a statute's language is clear and unambiguous, it
must be given its plain meaning." Id. "A statute is ambiguous if it is
capable of being understood in two or more senses by reasonably well-
informed persons." Id.McDonald Carano's withdrawal does not prevent it from enforcing its
charging lien
Charging liens are governed by NRS 18.015, which provides
that "[afiri attorney at law shall have a lien.,, [u]pon any claim, demand
or cause of action ... which has been placed in the attorney's hands by a
client for suit or collection," and that lien "attaches to any verdict,
judgment or decree entered and to any money or property which is
recovered on account of the suit or other action." NRS 18.015(1)(a), (4)(a).
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The district court held McDonald Carano could not enforce its
"charging lien because McDonald Carano withdrew from the Cooper
matter prior to any settlement being obtained and did not obtain a
settlement for the client." The district court based its decision on this
court's statement that "[a] charging lien is a lien on the judgment or
settlement that the attorney has obtained for the client." Argentena
Consol. Mining Co. v. Jolley Urga Wirth Woodbury & Standish, 125 Nev.
527, 534, 216 P.3d 779, 783-84 (2009) (emphasis added).
The district court's reliance on Argentena is misplaced.
Argentena said nothing about whether withdrawn attorneys can enforce
charging liens. It held that charging liens only apply when a client is
entitled to affirmative monetary recovery. Id. at 534, 216 P.3d at 784.
The language from Argentena that the district court relied on—"[a]
charging lien is a lien on the judgment or settlement that the attorney has
obtained for the client"—merely provided a general explanation of what a
charging lien is.' Id. We did not consider whether withdrawing prior to
'The full paragraph reads as follows:
A charging lien is a lien on the judgment or
settlement that the attorney has obtained for the
client. Here, it is undisputed that Argentena did
not file an affirmative claim against the plaintiff
in the underlying action. And although Jolley
Urga obtained a dismissal of all claims against
Argentena, the settlement did not result in any
recovery for Argentena. In the absence of
affirmative relief that Jolley Urga obtained for
Argentena, we conclude that Jolley Urga did not
have an enforceable charging lien over which the
district court had incidental jurisdiction to
continued on next page . . .
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settlement precluded the enforcement of a charging lien; therefore,
nothing in Argentena compels the conclusion that attorneys cannot assert
a charging lien if they withdraw before judgment or settlement.
NRS 18.015's language unambiguously allows any counsel
that worked on a claim to enforce a charging lien against any affirmative
recovery. According to NRS 18.015(1)(a), "lain attorney at law shall have
a lien" when a claim "has been placed in the attorney's hands by a client
for suit or collection." In other words, an attorney "shall have a lien" if
employed by a client; there is no requirement that the attorney serve the
client at the moment of recovery. Instead, there is a generalized
requirement of recovery so that the lien can actually attach to something
of value. NRS 18.015(4)(a) (providing that charging liens "attach[ ] to any
verdict, judgment or decree entered and to any money or property which is
recovered on account of the suit or other action"). Contrary to Bourassa's
arguments, NRS 18.015 does not distinguish between pre- and post-
recovery attorneys. It says that any attorney who worked on the case
"shall have a lien" on the claim and that the lien attaches to any recovery.
Therefore, the district court erred in holding that McDonald Carano's
withdrawal precluded it from enforcing a charging lien because NRS
18.015's plain language makes no distinction between attorneys who
. . . continued
adjudicate in the underlying case. Thus, we turn
to whether the district court had jurisdiction to
adjudicate Jolley Urga's retaining lien.
Argentena, 125 Nev. at 534, 216 P.3d at 783-84 (internal citations
omitted).
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worked on a case before recovery and those who were working on a case at
the moment of recovery.
On remand the district court must make additional findings
Because the district court based its decision solely on
McDonald Carano's withdrawal, it did not address certain necessary
issues regarding disbursement of the settlement funds. Specifically, "the
court must make certain findings and conclusions before distribution,"
including whether (1) NRS 18.015 is available to the attorney, (2) there is
some judgment or settlement, (3) the lien is enforceable, (4) the lien was
properly perfected under NRS 18.015(2), (5) the lien is subject to any
offsets, and (6) extraordinary circumstances affect the amount of the lien.
Michel v. Eighth Judicial Dist. Court, 117 Nev. 145, 151-52, 17 P.3d 1003,
1007-08 (2001). Further, the district court must determine the actual
amount of the lien pursuant to the retainer agreement or, if there is no
agreement, set a reasonable fee. Id. at 152, 17 P.3d at 1008. Finally, the
district court must ensure that McDonald Carano's and Bourassa's fee
agreements are not unreasonable. See Marquis & Aurbach v. Eighth
Judicial Dist. Court, 122 Nev. 1147, 1160-61, 146 P.3d 1130, 1138-39
(2006); Brunzell v. Golden Gate Nat'l Bank, 85 Nev. 345, 349-50, 455 P.2d
31, 33-34 (1969); RPC 1.5.
CONCLUSION
NRS 18.015's language unambiguously allows any counsel
that worked on a claim to enforce a charging lien against any affirmative
recovery. Thus, the district court erred in holding that McDonald Carano
cannot enforce its charging lien simply because it withdrew before its
client's settlement. However, additional findings are needed to determine
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whether McDonald Carano is entitled to a disbursement and, if it is, the
amount of that disbursement. Accordingly, we reverse the district court's
order and remand for further proceedings consistent with this opinion.
err
Parraguirre
We concur:
, J.
Douglas
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