Before the Court en banc. Opinion by Cherry.
This is an appeal related to the enforcement of a California judgment in Nevada based on the Uniform Enforcement of Foreign Judgments Act (“UEFJA”) codified in NRS 17.330-400. The Court found that penal judgments are exempted from the requirements of the UEFJA and are, therefore, not entitled to full faith and credit under Nevada’s UEFJA. The determination of whether a judgment is considered penal rests on whether the statute provides civil penalties for an offense against the public or whether the statute creates a right of action to compensate a private person or entity.
Oakland obtained a judgment against Desert Outdoor for violating a municipal code prohibiting the erection of sign advertising a business not located on the property on which the sign was erected. The judgment was obtained under the California Business and Professions Code section 5485, which provided penalties for advertising displays posted in violation of local ordinances. Thereafter, Oakland filed its judgment in the Second Judicial District Court. The Nevada UEFJA states that a foreign judgment which is entitled to full faith and credit in Nevada is treated as a domestic judgment. Citing to Huntington v. Attrill, 146 U.S. 657 (1892), the Court reiterated that the courts of one state cannot execute the penal laws of another. Oakland unsuccessfully argued that Huntington was superseded by the UEFJA. The Court found that Oakland’s penal judgment against Desert Outdoor fell outside the scope of the UEFJA because it was not entitled to full faith and credit in Nevada. The Court determined that the California legislature’s intent in creating the applicable penalties was to address public wrongs, not private harms. Oakland was not a private entity enforcing a civil right. (Joseph P. Schrage, Associate in the Las Vegas office of McDonald Carano Wilson)
Thursday, August 4, 2011
Yellow Cab of Reno, Inc. v. Second Judicial Dist. Ct., 127 Nev. Adv. Op. 52 (Aug. 4, 2011)
Before Douglas, Hardesty and Pickering. Opinion by Hardesty.
After originally denying a petition for writ of mandamus, the Court granted a petition for rehearing to consider the issue of whether a statutorily-recognized independent contractor relationship between a taxicab business and a cab driver (NRS 706.473) prevents liability for the taxicab business sued under a respondeat superior theory of liability. The district court, Hon. Janet Berry, concluded that the nature of the relationship between the taxicab company and the driver was a question of fact for the jury without addressing NRS 706.473, and summarily denied summary judgment. The Court reaffirmed the general rule that it will not consider a writ petition from the denial of summary judgment, stating that it would deny the writ on that basis, but addressed the merits of the petition because it presented an important issue of law. The Court held that while the determination as to whether an individual is an employee or an independent contractor for purposes of respondeat superior liability generally turns on the degree of control the employer exercises over the individual and that this is generally a question for the trier of fact, NRS 706.473 sets forth various administrative requirements for creating an independent contractor relationship in the taxicab company/driver context that have little to do with employer control. The Court concluded that the district court should have considered whether the requirements of the statute had been met, and whether an independent contractor relationship under NRS 706.473 would allow the taxicab company to avoid liability under a respondeat liability theory. Because the district court had failed to consider these issues and instead summarily denied summary judgment, the Court declined to consider the issue in the first instance through the present writ petition. The Court denied the petition but invited the district court to reconsider the propriety of summary judgment based on NRS 706.473. Writ denied. (Megan Starich, Associate in the Reno office of McDonald Carano Wilson)
After originally denying a petition for writ of mandamus, the Court granted a petition for rehearing to consider the issue of whether a statutorily-recognized independent contractor relationship between a taxicab business and a cab driver (NRS 706.473) prevents liability for the taxicab business sued under a respondeat superior theory of liability. The district court, Hon. Janet Berry, concluded that the nature of the relationship between the taxicab company and the driver was a question of fact for the jury without addressing NRS 706.473, and summarily denied summary judgment. The Court reaffirmed the general rule that it will not consider a writ petition from the denial of summary judgment, stating that it would deny the writ on that basis, but addressed the merits of the petition because it presented an important issue of law. The Court held that while the determination as to whether an individual is an employee or an independent contractor for purposes of respondeat superior liability generally turns on the degree of control the employer exercises over the individual and that this is generally a question for the trier of fact, NRS 706.473 sets forth various administrative requirements for creating an independent contractor relationship in the taxicab company/driver context that have little to do with employer control. The Court concluded that the district court should have considered whether the requirements of the statute had been met, and whether an independent contractor relationship under NRS 706.473 would allow the taxicab company to avoid liability under a respondeat liability theory. Because the district court had failed to consider these issues and instead summarily denied summary judgment, the Court declined to consider the issue in the first instance through the present writ petition. The Court denied the petition but invited the district court to reconsider the propriety of summary judgment based on NRS 706.473. Writ denied. (Megan Starich, Associate in the Reno office of McDonald Carano Wilson)
Gallegos v. Malco Enterprises of Nevada, 127 Nev. Adv. Op. 51 (August 4, 2011).
Before Saitta, Hardesty and Parraguirre. Opinion by Parraguirre.
In this appeal from a summary judgment decision in an insurance action, the Nevada Supreme Court clarifies that rights of action held by a judgment debtor are subject to execution toward satisfaction of a judgment under NRS 21.080, and may be judicially assigned pursuant to NRS 21.320. In making this determination, the Court first held that so long as a right of action is “property . . . not exempt from execution,” it may be judicially assigned in satisfaction of a judgment. See NRS 21.320. The Court then turned to NRS 21.080(1) to determine whether a right of action is “property . . . exempt from execution.” NRS 21.080(1) provides that “[a]ll goods, chattels, money and other property, real and personal, of the judgment debtor, or any interest therein of the judgment debtor not exempt by law, and all property and rights of property seized and held under attachment in the action are liable to execution.” The Court also considered NRS 10.045, which applies to the entire statutory title, including NRS 21.080, and defines personal property as including “money, goods, chattels, things in action and evidences of debt.” Accordingly, based upon the plain language of these statutes, the Court found that rights of action held by a judgment debtor are personal property subject to execution in satisfaction of a judgment. Reversed and remanded for further proceedings. (Amanda C. Yen, Associate in the Las Vegas office of McDonald Carano Wilson)
In this appeal from a summary judgment decision in an insurance action, the Nevada Supreme Court clarifies that rights of action held by a judgment debtor are subject to execution toward satisfaction of a judgment under NRS 21.080, and may be judicially assigned pursuant to NRS 21.320. In making this determination, the Court first held that so long as a right of action is “property . . . not exempt from execution,” it may be judicially assigned in satisfaction of a judgment. See NRS 21.320. The Court then turned to NRS 21.080(1) to determine whether a right of action is “property . . . exempt from execution.” NRS 21.080(1) provides that “[a]ll goods, chattels, money and other property, real and personal, of the judgment debtor, or any interest therein of the judgment debtor not exempt by law, and all property and rights of property seized and held under attachment in the action are liable to execution.” The Court also considered NRS 10.045, which applies to the entire statutory title, including NRS 21.080, and defines personal property as including “money, goods, chattels, things in action and evidences of debt.” Accordingly, based upon the plain language of these statutes, the Court found that rights of action held by a judgment debtor are personal property subject to execution in satisfaction of a judgment. Reversed and remanded for further proceedings. (Amanda C. Yen, Associate in the Las Vegas office of McDonald Carano Wilson)
Rennels v. Rennels, 127 Nev. Adv. Op. 49 (August 4, 2011)
Before Hardesty, Saitta and Parraguirre. Opinion by Hardesty.
In this family law case, the Court considered (1) whether a stipulated visitation order between a parent and a grandmother was a final decree entitled to res judicata protections; and (2) whether the parental presumption – i.e. fit parents act in the best interests of their child – continues to apply when a parent seeks to modify or terminate a nonparent’s judicially approved visitation rights of a minor child. The Court held that the stipulated visitation order between the parent and grandmother was a final order because it intended to resolve the entire dispute, thus it was a final decree that precluded relitigation of the nonparent’s right to visitation based on the same set of facts already considered. Next, the Court held that where a parent seeks to modify or terminate the judicially approved visitation rights of a nonparent, the parental presumption no longer controls. The Court adopted the two-prong test previously enunciated in Ellis v. Carucci, 123 Nev. 145 (2007), holding that modification or termination of a nonparent’s judicially approved visitation rights is only warranted upon a showing of substantial change in circumstances that affects the child’s welfare such that it is in the child’s bests interests to modify an existing visitation arrangement. Once a nonparent has effectively rebutted the parental presumption, a child’s need for stability becomes an important factor. Although the Court declined to articulate what circumstances may evidence the substantial change required under the first prong, the Court noted that hostility or animosity between the parent and nonparent, by itself, is insufficient. Under the second prong (best interests of the child) a court should evaluate the factors in NRS 125.480(4) as well as any other relevant considerations. Reversed and remanded for further proceedings. (Kristen Gallagher, Associate in the Las Vegas office of McDonald Carano Wilson)
In this family law case, the Court considered (1) whether a stipulated visitation order between a parent and a grandmother was a final decree entitled to res judicata protections; and (2) whether the parental presumption – i.e. fit parents act in the best interests of their child – continues to apply when a parent seeks to modify or terminate a nonparent’s judicially approved visitation rights of a minor child. The Court held that the stipulated visitation order between the parent and grandmother was a final order because it intended to resolve the entire dispute, thus it was a final decree that precluded relitigation of the nonparent’s right to visitation based on the same set of facts already considered. Next, the Court held that where a parent seeks to modify or terminate the judicially approved visitation rights of a nonparent, the parental presumption no longer controls. The Court adopted the two-prong test previously enunciated in Ellis v. Carucci, 123 Nev. 145 (2007), holding that modification or termination of a nonparent’s judicially approved visitation rights is only warranted upon a showing of substantial change in circumstances that affects the child’s welfare such that it is in the child’s bests interests to modify an existing visitation arrangement. Once a nonparent has effectively rebutted the parental presumption, a child’s need for stability becomes an important factor. Although the Court declined to articulate what circumstances may evidence the substantial change required under the first prong, the Court noted that hostility or animosity between the parent and nonparent, by itself, is insufficient. Under the second prong (best interests of the child) a court should evaluate the factors in NRS 125.480(4) as well as any other relevant considerations. Reversed and remanded for further proceedings. (Kristen Gallagher, Associate in the Las Vegas office of McDonald Carano Wilson)
Ben Roethlisberger v. Andrea NcNulty, 127 Nev. Adv. Op. 48 (August 4, 2011)
Before the court en banc. Opinion by Gibbons.
In this appeal from an order denying a change of venue in a tort action, the Court addressed whether appellant, a non-Nevada resident, had standing to challenge venue based upon a codefendant’s place of residence. Appellant was one of eight defendants, some of whom were Nevada residents, and the only defendant to appeal the district court order denying a motion for change of venue. Appellant argued that because neither plaintiff nor any defendant resides in Washoe County, venue is improper there under NRS 13.040. NRS 13.040 provides that an action against a Nevada resident shall be tried in the county in which any defendant resides, or, if there are no Nevada residents, then the action may be maintained in any Nevada county. The Court held that because venue in Washoe County was not improper as to appellant, he lacked standing to object venue pursuant to NRS 13.040. Affirmed. (Matthew A. Gray, Associate in the Reno office of McDonald Carano Wilson)
In this appeal from an order denying a change of venue in a tort action, the Court addressed whether appellant, a non-Nevada resident, had standing to challenge venue based upon a codefendant’s place of residence. Appellant was one of eight defendants, some of whom were Nevada residents, and the only defendant to appeal the district court order denying a motion for change of venue. Appellant argued that because neither plaintiff nor any defendant resides in Washoe County, venue is improper there under NRS 13.040. NRS 13.040 provides that an action against a Nevada resident shall be tried in the county in which any defendant resides, or, if there are no Nevada residents, then the action may be maintained in any Nevada county. The Court held that because venue in Washoe County was not improper as to appellant, he lacked standing to object venue pursuant to NRS 13.040. Affirmed. (Matthew A. Gray, Associate in the Reno office of McDonald Carano Wilson)
LVMPD v. Coregis Insurance Co., 127 Nev. Adv. Op. 47 (August 4, 2011)
Before the court en banc. Opinion by Gibbons.
In these consolidated appeals regarding insurance coverage, the Court addressed whether an insurer must demonstrate that it was prejudiced by the delay before denying coverage based on untimely notice of a claim. The Court first determined that the district court improperly granted summary judgment because the facts regarding the timeliness of the notice were in dispute. Addressing the main substance of the case, the Court held that its decision rejecting a prejudice requirement, Insurance Co. v. Cassinelli, 67 Nev. 227, 216 P.2d 606 (1950), had been abrogated by a later enacted administrative regulation and that requiring the insurer to demonstrate prejudice is the better rule. As such, the Court held that an insurer may not deny coverage based on untimely notice of a claim without demonstrating (1) that the notice was late and (2) that the late notice prejudiced the insurer. Reversed and remanded for further proceedings. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson)
In these consolidated appeals regarding insurance coverage, the Court addressed whether an insurer must demonstrate that it was prejudiced by the delay before denying coverage based on untimely notice of a claim. The Court first determined that the district court improperly granted summary judgment because the facts regarding the timeliness of the notice were in dispute. Addressing the main substance of the case, the Court held that its decision rejecting a prejudice requirement, Insurance Co. v. Cassinelli, 67 Nev. 227, 216 P.2d 606 (1950), had been abrogated by a later enacted administrative regulation and that requiring the insurer to demonstrate prejudice is the better rule. As such, the Court held that an insurer may not deny coverage based on untimely notice of a claim without demonstrating (1) that the notice was late and (2) that the late notice prejudiced the insurer. Reversed and remanded for further proceedings. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson)
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