Before The Court En Banc. Opinion by Saitta.
Daane, a homeowner against whose property real-party-in-interest CitiMortgage is attempting to foreclose, sought a writ of prohibition preventing a second foreclosure mediation proceeding from beginning because CitiMortgage had been sanctioned for participating in the previous foreclosure mediation in bad faith. The Court denied the writ, holding that Daane had an adequate remedy at law because he could file a petition for judicial review of the mediator’s decision. Implicitly, the Court is suggesting that a lender who has been denied a letter of certification that would allow a foreclosure to proceed, can simply file a new notice of default and begin the mediation process again. Petition denied. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
Thursday, September 29, 2011
Weddell v. Stewart, 127 Nev. Adv. Op. 58 (Sept. 29, 2011)
Before the Court en banc. Per curiam opinion.
The Court denied two motions for reconsideration in an opinion to emphasize the importance of complying with the Court’s procedural rules. In this case, appellant filed three separate notices of appeal, one from the merits of the underlying action, one from an order granting attorneys’ fees, and one from the order denying a motion to set aside the judgment. Appellants paid the filing fee for the notice of appeal filed on the merits of the case, but failed to pay a filing fee for the other two notices of appeal despite repeated warnings issued in Supreme Court orders. As such, the Court dismissed the two appeals in which fees had not been paid. Emphasizing that the Court has neither time nor money to police the payment of fees, the Court warns that it will take no action on any appeal until appropriate fees have been paid and, if the matter is docketed without payment of fees, the Court Clerk will issue a single notice demanding payment. After that notice, if the fees are not timely paid, the Court will dismiss the appeal. Motions denied. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson)
The Court denied two motions for reconsideration in an opinion to emphasize the importance of complying with the Court’s procedural rules. In this case, appellant filed three separate notices of appeal, one from the merits of the underlying action, one from an order granting attorneys’ fees, and one from the order denying a motion to set aside the judgment. Appellants paid the filing fee for the notice of appeal filed on the merits of the case, but failed to pay a filing fee for the other two notices of appeal despite repeated warnings issued in Supreme Court orders. As such, the Court dismissed the two appeals in which fees had not been paid. Emphasizing that the Court has neither time nor money to police the payment of fees, the Court warns that it will take no action on any appeal until appropriate fees have been paid and, if the matter is docketed without payment of fees, the Court Clerk will issue a single notice demanding payment. After that notice, if the fees are not timely paid, the Court will dismiss the appeal. Motions denied. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson)
City of North Las Vegas v. State, EMRB, 127 Nev. Adv. Op. 57 (Sept. 29, 2011)
Before the Court en banc. Opinion by Cherry.
In this appeal from a petition for judicial review of a decision of the Employee-Management Relations Board (the “Board”), the Court held that the doctrine of equitable tolling applies to NRS 288.110(4)’s six month limitations period in which an employee must make a complaint to the Board. The Court adopted the federal approach to treating the similar federal rule, specifically adopting the “unequivocal notice” rule – which states that the six month limitations period begins to run when the employee receives “unequivocal notice of a final adverse decision” – and applying the doctrine of equitable tolling to the period as it would to any statute of limitations period. Because the employee in this case diligently pursued his claims after discovering his employer’s allegedly discriminatory treatment of him, the Board properly tolled the limitations period and allowed the claims to go forward. In looking at the merits of the Board’s decision regarding Appellant’s claim of gender discrimination, the Court specifically adopted the Second and Seventh Circuits’ test for determining whether two employees are similarly situated: a court should compare several factors including “(1) whether the employees were subject to the same performance evaluation standards; (2) whether the employees engaged in comparable conduct; (3) whether the employees dealt with the same supervisor; (4) whether the employees were subject to the same disciplinary standards; and (5) whether the employees had comparable experience, education, and qualifications, if the employer took these factors into account in making its decision.” The Court further ruled that the determination of whether employees are similarly situated is a factual finding entitled to deference on appellate review. Petition for judicial review denied. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson)
In this appeal from a petition for judicial review of a decision of the Employee-Management Relations Board (the “Board”), the Court held that the doctrine of equitable tolling applies to NRS 288.110(4)’s six month limitations period in which an employee must make a complaint to the Board. The Court adopted the federal approach to treating the similar federal rule, specifically adopting the “unequivocal notice” rule – which states that the six month limitations period begins to run when the employee receives “unequivocal notice of a final adverse decision” – and applying the doctrine of equitable tolling to the period as it would to any statute of limitations period. Because the employee in this case diligently pursued his claims after discovering his employer’s allegedly discriminatory treatment of him, the Board properly tolled the limitations period and allowed the claims to go forward. In looking at the merits of the Board’s decision regarding Appellant’s claim of gender discrimination, the Court specifically adopted the Second and Seventh Circuits’ test for determining whether two employees are similarly situated: a court should compare several factors including “(1) whether the employees were subject to the same performance evaluation standards; (2) whether the employees engaged in comparable conduct; (3) whether the employees dealt with the same supervisor; (4) whether the employees were subject to the same disciplinary standards; and (5) whether the employees had comparable experience, education, and qualifications, if the employer took these factors into account in making its decision.” The Court further ruled that the determination of whether employees are similarly situated is a factual finding entitled to deference on appellate review. Petition for judicial review denied. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson)
Thursday, September 8, 2011
Otak Nevada, LLC v. Dist. Ct., 127 Nev. Adv. Op. 53 (Sept. 8, 2011)
Before Saitta, Hardesty and Parraguirre. Opinion by Hardesty.
In this writ proceeding regarding personal injury and death caused by non-residential construction design malpractice, the Court addressed whether a complaint alleging non-residential construction design malpractice is void ab initio unless the required attorney affidavit and expert report supporting the claims are served concurrently. The Court construed NRS 11.258, which mandates the attorney affidavit and expert opinion, in same fashion as the similar statute requiring such supporting documents for claims of medical malpractice. Because the statute states a clear requirement for the supporting documentation and mandates that a district court dismiss a complaint for failure to comply, a complaint without the supporting affidavit and expert report is void ab initio and the district court is without authority to grant leave to amend. Furthermore, each party must file their own affidavit and expert report and may not rely on those provided by another party. The Court ordered the district court to set aside its orders allowing amendment and grant the motion to dismiss. Petition granted. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson)
In this writ proceeding regarding personal injury and death caused by non-residential construction design malpractice, the Court addressed whether a complaint alleging non-residential construction design malpractice is void ab initio unless the required attorney affidavit and expert report supporting the claims are served concurrently. The Court construed NRS 11.258, which mandates the attorney affidavit and expert opinion, in same fashion as the similar statute requiring such supporting documents for claims of medical malpractice. Because the statute states a clear requirement for the supporting documentation and mandates that a district court dismiss a complaint for failure to comply, a complaint without the supporting affidavit and expert report is void ab initio and the district court is without authority to grant leave to amend. Furthermore, each party must file their own affidavit and expert report and may not rely on those provided by another party. The Court ordered the district court to set aside its orders allowing amendment and grant the motion to dismiss. Petition granted. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson)
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