Attorney fees seen as vital in cases

Thursday, June 16, 2005 | 11:07 a.m.

CARSON CITY -- A Henderson lawyer told the Nevada Supreme Court on Wednesday that single-family homeowners won't be able to afford construction-defect lawsuits if judges don't award adequate attorney fees after a trial.

Donna L. Schubert, representing homeowners Dionicio and Kathryn Albios, argued that fewer lawyers would take on these types of cases without some assurance of getting paid for their efforts.

But Robert Eisenberg, representing Horizon Communities, Inc., argued that Schubert was not entitled to more money because the jury verdict was less than the company offered in a settlement.

The Albioses, a retired couple, purchased their home in the Sundance Subdivision in 1994 for $154,000. And the couple filed suit in July 2000 against Horizon Communities alleging construction defects. After a 10-day trial that started in September 2002, a jury awarded $95,000 to the homeowners.

District Judge Michael Cherry awarded Schubert $50,000 for her work on the case, but Schubert said she is entitled to $234,000 for her representation of the Albioses and she said the documentation she submitted proved her claim.

She suggests the district judge was arbitrary and capricious in not approving the $234,000. The law, Schubert argues, gives the district judge the discretion to award attorney fees and costs to the prevailing party. And in her brief to the court, she said her $200 an hour is less than the customary fee charged for civil litigation.

But Eisenberg said if the homeowners did not get a more favorable result than the settlement offers by Horizon Communities, then the lawyer is not entitled to fees.

Horizon offered to settle the case for $150,001 in November 2001 that included attorney fees and costs. In December 2001, it made a $200,001 settlement offer including attorney fees and costs. Two weeks before the trial it offered $100,001, exclusive of attorney fees and costs.

If the $100,001 had been accepted, the homeowners could have than sought attorney fees and costs through the court.

Eisenberg said the jury verdict was $95,000, which was less than any of the settlement offers. The law, he said, precludes awarding costs and attorney fees to a party who has rejected a settlement offer and then fails to obtain a more favorable judgment.

Two weeks before the trial, the homeowners offered to settle for $187,000, exclusive of attorney fees and costs. Eisenberg said the couple was talking about $300,000 to $400,000 damage early in the litigation.

Horizon maintains it is entitled to attorney fees of $233,287 and costs of $126,501. It says it prevailed at the trial since the jury award was less than the settlement offers.

Schubert told the court that if lawyers are not awarded their fees, then only single families that are rich will be able to sue for construction defects.

The court will rule on the matter later.