FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CROCKETT & MYERS, LTD. and J.R.
CROCKETT JR.,
Plaintiffs-counter-defendants-
No. 10-16040
Appellees,
v. D.C. No.
2:05-cv-0877-PMP
NAPIER, FITZGERALD & KIRBY, LLP
OPINION
and BRIAN P. FITZGERALD,
Defendants-counter-claimants-
Appellants.
Appeal from the United States District Court
for the District of Nevada
Philip Pro, District Judge, Presiding
Argued and Submitted
October 14, 2011—San Francisco, California
Filed December 16, 2011
Before: Procter R. Hug, Andrew J. Kleinfeld, and
William A. Fletcher, Circuit Judges.
Per Curiam Opinion
21017
CROCKETT & MYERS v. NAPIER, FITZGERALD & KIRBY 21019
COUNSEL
Michael K. Wall, Hutchison & Steffen, LLC, Las Vegas,
Nevada, for the defendants-counterclaimants-appellants.
Joice B. Bass, Lewis and Roca LLP, Las Vegas, Nevada and
Samuel S. Lionel, Lionel Sawyer & Collins, Las Vegas,
Nevada, for the plaintiffs-counterdefendants-appellees.
OPINION
PER CURIAM:
Brian Fitzgerald appeals for a second time the district
court’s award to him of $33,333 in quantum meruit based on
the unjust enrichment he conferred on Appellee Crockett &
Myers, Ltd. (Crockett). In his first appeal, Fitzgerald argued
to a previous panel of this court1 that the district court’s quan-
1
Fitzgerald’s original appeal was before a different panel of this court
but has been referred to this panel following the district court’s order on
remand.
21020 CROCKETT & MYERS v. NAPIER, FITZGERALD & KIRBY
tum meruit award was erroneous because Fitzgerald referred
a major client to Crockett but the award did not account for
the value of that referral. The panel agreed and remanded with
instructions that the district court recalculate Fitzgerald’s
quantum meruit award to include the value of the client refer-
ral apart from the value of any other services Fitzgerald per-
formed for Crockett. On remand, the district court re-entered
its original award of $33,333. We are once again asked to
consider whether the district court’s $33,333 award was
proper, and once again we hold that it was not.
I
The full factual history of this case is well documented in
our opinion following Fitzgerald’s first appeal, Crockett &
Myers, Ltd. v. Napier, Fitzgerald & Kirby, LLP, 583 F.3d
1232 (9th Cir. 2009) (Crockett I), so we do not recite it in
great detail here. The case is again before this court because
Fitzgerald claims that the district court did not follow the
remand instructions in Crockett I. In the Crockett I appeal,
Fitzgerald challenged the district court’s award to him of
$33,333. The district court had awarded Fitzgerald that
amount in quantum meruit for his services in a medical mal-
practice case Crockett had settled on behalf of Wende Nostro,
a client Fitzgerald had referred to Crockett. Crockett had ulti-
mately received $500,000 in fees from settling Nostro’s case,
and Fitzgerald argued that he was entitled to half that amount
pursuant to an agreement between him and Crockett. Fitzger-
ald also pointed out that Crockett had a custom of paying
attorneys who refer clients a referral fee equal to one-third of
what Crockett recovers, and he argued in the alternative that
Crockett was required to pay him that amount in quantum
meruit.
After a bench trial, the district court ruled that the agree-
ment was not binding on Crockett and that Fitzgerald was
thus not entitled to half of Crockett’s recovery, but it con-
cluded that Fitzgerald should be awarded in quantum meruit
CROCKETT & MYERS v. NAPIER, FITZGERALD & KIRBY 21021
for his contributions to the Nostro case. Crockett suggested
that Fitzgerald’s quantum meruit recovery should be no more
than the hourly fees associated with Fitzgerald’s work on the
case, but the district court determined that amount was too
low. The district court ultimately arrived at the amount of
$33,333 for Fitzgerald’s quantum meruit award, believing that
figure to be reasonable compensation for Fitzgerald’s efforts
in the Nostro case.
This court vacated the award. Id. at 1239. While we agreed
with the district court that Fitzgerald was not entitled to half
of Crockett’s $500,000 fee, we held that the district court had
“clearly erred” in its calculation of Fitzgerald’s quantum
meruit award because the $33,333 amount did not reflect the
value of Fitzgerald’s referral of the Nostro case to Crockett.
Id. at 1238-39. The district court had arrived at the $33,333
figure by awarding Fitzgerald a percentage of the money he
saved Nostro by negotiating with Crockett to reduce her con-
tingency fee from 40% to 33 1/3%. The district court rea-
soned that Fitzgerald ultimately saved Nostro $100,000 (the
additional amount she would have paid Crockett as part of her
settlement under its standard 40% contingency fee) and con-
cluded that 33 1/3% of that amount was a reasonable sum
deserved by Fitzgerald as compensation for his services in the
Nostro case.
We observed that while the $33,333 figure reflected a rea-
sonable approximation of the value Fitzgerald conferred on
Nostro by negotiating the lower contingency fee, it did not
account for the value to Crockett of Fitzgerald’s referral. Id.
at 1239. We accordingly remanded with instructions that the
district court recalculate the quantum meruit award to include
the value of the client referral “in and of itself” apart from any
other benefit Fitzgerald conferred on Crockett. Id. We added
as a final note that the district court “may also consider
‘established customs’ when calculating an award under quan-
tum meruit.” Id.
21022 CROCKETT & MYERS v. NAPIER, FITZGERALD & KIRBY
On remand, the district court concluded that its original
$33,333 quantum meruit award properly compensated Fitz-
gerald. To this court’s instruction that it include the value of
Fitzgerald’s client referral as part of the quantum meruit
award, the district court responded that the referral had indeed
been factored into its original calculation. The district court
rejected without explanation Fitzgerald’s argument that
Crockett’s ordinary practice of paying a one-third referral fee
was an “established custom” as referenced in Crockett I and
that Fitzgerald should thus at minimum be awarded one-third
of Crockett’s $500,000 fee. Concluding that its original award
“encompasses the reasonable value of Fitzgerald’s referral of
the Nostro case to Crockett, as well as all other beneficial ser-
vices provided by Fitzgerald,” the district court re-entered the
$33,333 sum. Fitzgerald again appeals from the district
court’s order.
II
We have jurisdiction over Fitzgerald’s appeal under 28
U.S.C. § 1291. A monetary award following a bench trial is
a finding of fact we review for clear error. See Jarvis v. K2
Inc., 486 F.3d 526, 529 (9th Cir. 2007). To facilitate appellate
review under this standard, Federal Rule of Civil Procedure
52(a) provides that a district court trying an action without a
jury must “find the facts specially and state its conclusions of
law separately.” Fed. R. Civ. P. 52(a)(1). Findings of fact
made pursuant to Rule 52(a) must be “explicit enough to give
the appellate court a clear understanding of the basis of the
trial court’s decision, and to enable it to determine the ground
on which the trial court reached its decision.” Zivkovic v. S.
California Edison Co., 302 F.3d 1080, 1090 (9th Cir. 2002)
(internal quotation omitted). In particular, the district court’s
findings of fact as to how it calculates damages or any other
monetary award must be made “with sufficient particularity
so that they may be reviewed” under the applicable standard
on appeal. See Hatahley v. United States, 351 U.S. 173, 182
CROCKETT & MYERS v. NAPIER, FITZGERALD & KIRBY 21023
(1956); Carpenters Local 1273 of United Bhd. of Carpenters
and Joiners of Am. v. Hill, 398 F.2d 360, 363 (9th Cir. 1968).
III
[1] The district court erred in re-entering its original award
of $33,333 on remand. Our instructions in Crockett I required
the district court to make a specific factual finding as to the
value of Fitzgerald’s referral of a client whose case enriched
Crockett by $500,000, and further to consider any “estab-
lished customs” in determining that value, if appropriate. See
id. The district court did not make these findings in its order
on remand because it concluded that its original award of
$33,333 already encompassed the value of Fitzgerald’s refer-
ral to Crockett. That conclusion is not supported by the
record. The record establishes that the district court calculated
its original award based on the amount of money Fitzgerald
saved Nostro by negotiating a reduced contingency fee on her
behalf, but how much Fitzgerald saved Nostro is not a proper
basis for calculating his quantum meruit claim against Crock-
ett. The relevant question for purposes of that quantum meruit
claim is how much of a benefit Fitzgerald conferred on
Crockett that the latter unjustly retained. See Thompson v.
Herrmann, 530 P.2d 1183, 1186 (Nev. 1975); Crockett I, 583
F.3d at 1238. The prior panel of this court established in
Crockett I that the proper measure for unjust enrichment to
Crockett is the value of Fitzgerald’s referral. See Crockett I,
583 F.3d at 1239. All that remained for the district court was
to find that value based on the evidence the parties presented.
[2] After a full bench trial and several rounds of briefing
by both parties, the only evidence on record that pertains to
the value of Fitzgerald’s referral is that Crockett customarily
pays attorneys who refer clients a fee equal to one-third of
Crockett’s ultimate recovery from the referred case. Crockett
does not dispute that it usually pays a one-third referral fee,
and the district court explicitly found in both its original judg-
ment and its order on remand that this was Crockett’s estab-
21024 CROCKETT & MYERS v. NAPIER, FITZGERALD & KIRBY
lished custom. In light of this finding, and of the fact that
Crockett recovered $500,000 from the Nostro case, the district
court’s conclusion that its original $33,333 quantum meruit
award encompassed the value of Fitzgerald’s referral is
plainly erroneous. We hold that, under the circumstances of
this case, Crockett’s custom of paying a one-third referral fee
is the most definitive indication of the value of Fitzgerald’s
referral of the Nostro case. Thus, the initial measure of Fitz-
gerald’s quantum meruit award is one-third of Crockett’s
$500,000 recovery from the Nostro settlement, or $166,666.
[3] However, we further hold that the $166,666 amount
should be reduced to the extent Fitzgerald decreased the over-
all value to Crockett of the Nostro case. The record estab-
lishes that Fitzgerald negotiated on Nostro’s behalf to reduce
Crockett’s contingency fee from 40% to 33 1/3%. To account
for this lost value to Crockett, we reduce Fitzgerald’s quan-
tum meruit award by $66,666—the additional amount Crock-
ett would have retained but for the lower contingency fee2—
for a net award of $100,000.
[4] We vacate the district court’s order awarding Fitzger-
ald $33,333 and remand with instructions that the district
court enter a final quantum meruit award of $100,000 for
Fitzgerald in accordance with the foregoing discussion.
VACATED AND REMANDED.
2
Under its usual 40% contingency fee, Crockett would have received
$600,000 from Nostro’s settlement and retained $400,000 of that amount
after paying Fitzgerald a one-third referral fee. By contrast, under the
lower 33 1/3% contingency fee, Crockett recovered only $500,000, of
which it would have retained $333,334 after paying Fitzgerald his one-
third fee. We deduct from Fitzgerald’s award the difference of $66,666.