Before Justices Saitta, Pickering and Hardesty. Opinion by Justice Hardesty.
This opinion arose from a motion to seal records in a criminal appeal. In it, the Court addressed the sealing of records in criminal cases by thoroughly examining the rules for sealing records in civil cases. First, the Court held that documents filed in the Nevada Supreme Court are presumptively open to the public. However, the Court retains the inherent supervisory authority to limit this access if a party seeking to seal such documents overcomes this presumption. The presumption may be overcome by demonstrating that the public’s right to access is outweighed by a significant competing interest. Second, the Court concluded that, procedurally, a party seeking to file documents under seal must first file a motion which identifies the information sought to be sealed, the reasons why such action is necessary, the specific requested duration of the sealing order and an explanation of why less restrictive means will not adequately protect the material. Discussing SRCR 3, which governs the procedures for sealing records in civil cases before the Nevada Supreme Court, the Court noted that the party requesting that records be sealed must file and serve a motion establishing appropriate grounds for sealing such records. Before a final decision is made on the motion to file under seal, the information will remain confidential for a reasonable period of time. The Court also clarified that the sealing of an entire court file is prohibited and that any order to seal records should use the least restrictive means and duration. Previously filed records ordered unsealed. (Amanda M. Perach, Associate in the Las Vegas office of McDonald Carano Wilson.)
Thursday, December 27, 2012
Foster v. Costco Wholesale Corporation, 128 Nev. Adv. Op. 71 (Dec. 27, 2012)
Before Justices Cherry, Pickering and Hardesty. Opinion by Chief Justice Cherry.
In this appeal, the Court considered a landowner’s duty of care to entrants on the landowner’s property in a negligence suit. The Appellant, Foster, tripped and fell over a wooden pallet at a Costco warehouse store, and sustained several injuries from the fall. The pallet had been positioned in an isle of the warehouse by a Costco employee, and there were no barricades placed to warn customers or to prevent them from entering the isle where the pallets were. Foster testified that he tried to walk around the pallet, but caught his foot on a corner of the pallet that was apparently concealed by the boxes on top of the pallet. Costco moved for summary judgment and the district court granted summary judgment, holding that Costco had not breached its duty of care because the hazard created by the pallet was open and obvious to Foster. In reaching this conclusion, the district court relied on Gunlock v. New Frontier Hotel, 78 Nev. 182, 379 P.2d 682 (1962), in which the Nevada Supreme Court held that a landowner “is not liable for an injury to an invitee resulting from a danger which was obvious or should have been observed by the exercise of reasonable care.” The court examined the history of the “open and obvious” doctrine, recognizing that the Nevada Supreme Court had held after Gunlock that “determinations of liability should primarily depend upon whether the owner or occupier of land acted reasonably under the circumstances.” The Court then explicitly adopted the rule from the Restatement (Third) of Torts, holding that landowners bear a general duty of reasonable care to all entrants, regardless of the open and obvious nature of the dangerous condition, or put another way, that the open and obvious nature of a dangerous condition does not automatically relieve a landowner from the general duty of reasonable care. Instead, the fact that a dangerous condition may be open and obvious bears on the assessment of whether reasonable care was exercised by the landowner. The analysis of the landowner’s exercise of reasonable care must be conducted with regard to the foreseeability and gravity of the harm, and the feasibility and availability of alternative conduct that would have prevented the harm. In the circumstances of this case, the Court stated that the fact finder must take into account circumstances such as whether the nearby displays were distracting and whether the landowner has reason to suspect that the entrant would proceed despite a known or obvious danger. The Court further held that the open and obvious nature of the danger could be a factor in the reasonable care assessment of the entrant’s actions when apportioning comparative fault. The Court reversed the district court’s decision on summary judgment, holding that liability could not properly be decided as a matter of law on the facts presented pursuant to the standard adopted by the court because there was evidence that the danger of the pallet in the isle was not open and obvious to Foster, as the dangerous corner may have been blocked from his sight. Reversed and remanded. (Megan Starich, Associate in the Reno office of McDonald Carano Wilson LLP.)
In this appeal, the Court considered a landowner’s duty of care to entrants on the landowner’s property in a negligence suit. The Appellant, Foster, tripped and fell over a wooden pallet at a Costco warehouse store, and sustained several injuries from the fall. The pallet had been positioned in an isle of the warehouse by a Costco employee, and there were no barricades placed to warn customers or to prevent them from entering the isle where the pallets were. Foster testified that he tried to walk around the pallet, but caught his foot on a corner of the pallet that was apparently concealed by the boxes on top of the pallet. Costco moved for summary judgment and the district court granted summary judgment, holding that Costco had not breached its duty of care because the hazard created by the pallet was open and obvious to Foster. In reaching this conclusion, the district court relied on Gunlock v. New Frontier Hotel, 78 Nev. 182, 379 P.2d 682 (1962), in which the Nevada Supreme Court held that a landowner “is not liable for an injury to an invitee resulting from a danger which was obvious or should have been observed by the exercise of reasonable care.” The court examined the history of the “open and obvious” doctrine, recognizing that the Nevada Supreme Court had held after Gunlock that “determinations of liability should primarily depend upon whether the owner or occupier of land acted reasonably under the circumstances.” The Court then explicitly adopted the rule from the Restatement (Third) of Torts, holding that landowners bear a general duty of reasonable care to all entrants, regardless of the open and obvious nature of the dangerous condition, or put another way, that the open and obvious nature of a dangerous condition does not automatically relieve a landowner from the general duty of reasonable care. Instead, the fact that a dangerous condition may be open and obvious bears on the assessment of whether reasonable care was exercised by the landowner. The analysis of the landowner’s exercise of reasonable care must be conducted with regard to the foreseeability and gravity of the harm, and the feasibility and availability of alternative conduct that would have prevented the harm. In the circumstances of this case, the Court stated that the fact finder must take into account circumstances such as whether the nearby displays were distracting and whether the landowner has reason to suspect that the entrant would proceed despite a known or obvious danger. The Court further held that the open and obvious nature of the danger could be a factor in the reasonable care assessment of the entrant’s actions when apportioning comparative fault. The Court reversed the district court’s decision on summary judgment, holding that liability could not properly be decided as a matter of law on the facts presented pursuant to the standard adopted by the court because there was evidence that the danger of the pallet in the isle was not open and obvious to Foster, as the dangerous corner may have been blocked from his sight. Reversed and remanded. (Megan Starich, Associate in the Reno office of McDonald Carano Wilson LLP.)
Dynamic Transit v. Trans Pac. Ventures, 128 Nev. Adv. Op. 69 (Dec. 27, 2012)
Before Justices Douglas, Gibbons, and Parraguirre. Opinion by Justice Parraguirre.
In this appeal from an amended judgment following a bench trial, the Court examined whether the Carmack Amendment preempted a shipper’s state-law claim for conversion. Respondents/Cross-Appellants purchased a luxury sports car and contracted with Nex-Day Auto Transport to facilitate its delivery to Washington State. Nex-Day then advertised the job on an industry website, and received an offer from Appellants/Cross-Respondents to transport the car. Nex-Day faxed a work order to Appellants, and required a signed copy to complete the agreement, which Nex-Day never received. Nex-Day faxed Appellants a cancellation, and proceeded to solicit other carriers. The following day, a driver employed by Appellants arrived at the car dealership and loaded the vehicle onto a carrier, despite the protests of a dealership representative. Appellants then transported the car to Washington State, but instead of completing delivery, they held the car as ransom, demanding that Nex-Day pay for past-due invoices for prior work Appellants had performed for Nex-Day. Nex-Day failed to pay these past-due amounts, and the car was ultimately transported to a storage facility in Missouri. Respondents brought an action against Appellants, claiming, among other things, conversion and fraud. Nearly a year and a half after filing its answer, Appellants filed a motion to dismiss under NRCP 12(b)(5) on the basis that Respondents’ claims were preempted by the federal Carmack Amendment, which limits liability for interstate cargo carriers solely to the “actual loss or injury” to goods that occurs during interstate transit. The district court denied the motion, on the basis that the Carmack Amendment did not apply in instances of conversion and fraud. The Court examined Ninth Circuit precedent in affirming the district court’s judgment, holding that in instances of “true conversion,” such as occurred in this case, the Carmack Amendment does not preempt state law conversion claims. It noted, however, that other federal case law suggested that fraud claims are typically preempted. The Court quickly rejected Appellants’ claim that the district court’s judgment was not supported by substantial evidence, and upheld the district court’s award of compensatory and punitive damages. It noted that three other arguments made by Appellants had not been preserved for appeal because Appellants did not raise these arguments at trial, and failed to provide relevant authority for these arguments on appeal. Affirmed in part and dismissed in part. (Jeff S. Riesenmy, Associate in the Las Vegas office of McDonald Carano Wilson.)
In this appeal from an amended judgment following a bench trial, the Court examined whether the Carmack Amendment preempted a shipper’s state-law claim for conversion. Respondents/Cross-Appellants purchased a luxury sports car and contracted with Nex-Day Auto Transport to facilitate its delivery to Washington State. Nex-Day then advertised the job on an industry website, and received an offer from Appellants/Cross-Respondents to transport the car. Nex-Day faxed a work order to Appellants, and required a signed copy to complete the agreement, which Nex-Day never received. Nex-Day faxed Appellants a cancellation, and proceeded to solicit other carriers. The following day, a driver employed by Appellants arrived at the car dealership and loaded the vehicle onto a carrier, despite the protests of a dealership representative. Appellants then transported the car to Washington State, but instead of completing delivery, they held the car as ransom, demanding that Nex-Day pay for past-due invoices for prior work Appellants had performed for Nex-Day. Nex-Day failed to pay these past-due amounts, and the car was ultimately transported to a storage facility in Missouri. Respondents brought an action against Appellants, claiming, among other things, conversion and fraud. Nearly a year and a half after filing its answer, Appellants filed a motion to dismiss under NRCP 12(b)(5) on the basis that Respondents’ claims were preempted by the federal Carmack Amendment, which limits liability for interstate cargo carriers solely to the “actual loss or injury” to goods that occurs during interstate transit. The district court denied the motion, on the basis that the Carmack Amendment did not apply in instances of conversion and fraud. The Court examined Ninth Circuit precedent in affirming the district court’s judgment, holding that in instances of “true conversion,” such as occurred in this case, the Carmack Amendment does not preempt state law conversion claims. It noted, however, that other federal case law suggested that fraud claims are typically preempted. The Court quickly rejected Appellants’ claim that the district court’s judgment was not supported by substantial evidence, and upheld the district court’s award of compensatory and punitive damages. It noted that three other arguments made by Appellants had not been preserved for appeal because Appellants did not raise these arguments at trial, and failed to provide relevant authority for these arguments on appeal. Affirmed in part and dismissed in part. (Jeff S. Riesenmy, Associate in the Las Vegas office of McDonald Carano Wilson.)
Beazer Homes Holding Corp. v. Dist. Ct., 128 Nev. Adv. Op. 66 (December, 27, 2012)
Before the Court En Banc. Opinion by Justice Douglas.
In this writ petition, the Court clarified the rule announced in D.R. Horton v. District Court (First Light II), 125 Nev. 449, 215 P.3d 697 (2009), by which homeowners’ associations can sue on behalf of their members if they meet the Rule 23 class action requirements. Beazer Homes Holding Corp. (the Developer) challenged the district court’s decision to permit real-party-in-interest View of Black Mountain Homeowners’ Association, Inc. (the HOA) to maintain a construction defect class action lawsuit on behalf of its members. The district court determined that the case was factually distinguishable from First Light II (which involved interior, rather than exterior, defects), and the HOA was not required to meet the class action requirements of NRCP 23 because it was expressly permitted to litigate on behalf of its members pursuant to NRS 116.3102(1)(d). In its writ petition, the Developer argued that First Light II required the district court to analyze Rule 23 and, based on that analysis, the HOA could not proceed in a representative capacity. The Court first restated a portion of its holding in First Light II that, pursuant to NRS 116.3102(1), a homeowners’ association has standing to sue on behalf of its members, regardless of whether it meets the NRCP 23 class action requirements, and regardless of whether it is seeking to recover damages for common areas which it is responsible for maintaining. In addition, the Court reiterated that an association is required to satisfy the Rule 23 class action requirements in order to pursue individual construction defect claims of multiple owners. However, the Court clarified that, despite suggestions in First Light II to the contrary, a homeowners’ association’s failure to strictly satisfy those requirements does not automatically result in a failure of the representative action. Rather, district courts are required to conduct a Rule 23 analysis when a homeowners’ association requests certification of a class action, as such an analysis will assist the district court in determining how the action should proceed (i.e., as a class action, a joinder action, consolidated actions, or in some other fashion), and how notice, discovery, evidentiary, and claim preclusion issues should be resolved. The Court held that the district court acted arbitrarily and capriciously because it failed to conduct such an analysis. Accordingly, the Court granted the Developer’s writ petition in part, and directed the clerk to issue a writ of mandamus instructing the district court to conduct a Rule 23 analysis. (Patrick J. Murch, Associate in the Las Vegas office of McDonald Carano Wilson LLP).
In this writ petition, the Court clarified the rule announced in D.R. Horton v. District Court (First Light II), 125 Nev. 449, 215 P.3d 697 (2009), by which homeowners’ associations can sue on behalf of their members if they meet the Rule 23 class action requirements. Beazer Homes Holding Corp. (the Developer) challenged the district court’s decision to permit real-party-in-interest View of Black Mountain Homeowners’ Association, Inc. (the HOA) to maintain a construction defect class action lawsuit on behalf of its members. The district court determined that the case was factually distinguishable from First Light II (which involved interior, rather than exterior, defects), and the HOA was not required to meet the class action requirements of NRCP 23 because it was expressly permitted to litigate on behalf of its members pursuant to NRS 116.3102(1)(d). In its writ petition, the Developer argued that First Light II required the district court to analyze Rule 23 and, based on that analysis, the HOA could not proceed in a representative capacity. The Court first restated a portion of its holding in First Light II that, pursuant to NRS 116.3102(1), a homeowners’ association has standing to sue on behalf of its members, regardless of whether it meets the NRCP 23 class action requirements, and regardless of whether it is seeking to recover damages for common areas which it is responsible for maintaining. In addition, the Court reiterated that an association is required to satisfy the Rule 23 class action requirements in order to pursue individual construction defect claims of multiple owners. However, the Court clarified that, despite suggestions in First Light II to the contrary, a homeowners’ association’s failure to strictly satisfy those requirements does not automatically result in a failure of the representative action. Rather, district courts are required to conduct a Rule 23 analysis when a homeowners’ association requests certification of a class action, as such an analysis will assist the district court in determining how the action should proceed (i.e., as a class action, a joinder action, consolidated actions, or in some other fashion), and how notice, discovery, evidentiary, and claim preclusion issues should be resolved. The Court held that the district court acted arbitrarily and capriciously because it failed to conduct such an analysis. Accordingly, the Court granted the Developer’s writ petition in part, and directed the clerk to issue a writ of mandamus instructing the district court to conduct a Rule 23 analysis. (Patrick J. Murch, Associate in the Las Vegas office of McDonald Carano Wilson LLP).
Butwinick v. Hepner, 128 Nev. Adv. Op. 65 (Dec. 27, 2012)
Before the Court en banc. Per curiam opinion.
This opinion arises from respondents’ motion to substitute themselves for appellants, as their successors in interest, and to dismiss the appeal. The underlying action involved claims filed by the respondents (plaintiffs in the underlying action) and counterclaims filed by the appellants (defendants in the underlying action). After trial, the district court entered judgment for the respondents and denied any relief to appellants on their counterclaims. The appellants filed an appeal, but lacked sufficient resources to post a supersedeas bond or obtain a stay. Following trial, the respondents executed on the judgment and ostensibly acquired the appellants’ claims and defenses in the underlying action at a judgment execution sale. Thereafter, the respondents filed a motion seeking to substitute themselves as the successors in interest to appellants along with a motion to dismiss the appeal. In denying the motion to substitute and dismiss in its entirety, the Court clarified that although the “claims” held by appellants could be viewed as “personal property” pursuant to NRS 10.045 and therefore executed upon by the respondents in enforcement of the judgment pursuant to NRS 21.010 and Gallegos v. Malco Enterprises of NV, 127 Nev. ___, ____, 255 P.3d 1287, 1289 (2011); however, the “defenses” held by appellants were not similarly assignable. Because appellants had waived any “claims” by failing to raise those arguments on appeal, the only issues remaining on appeal were “defenses”, which respondents could not acquire and could not dismiss. Motion denied. (David Stoft, Associate in the Las Vegas office of McDonald Carano Wilson.)
This opinion arises from respondents’ motion to substitute themselves for appellants, as their successors in interest, and to dismiss the appeal. The underlying action involved claims filed by the respondents (plaintiffs in the underlying action) and counterclaims filed by the appellants (defendants in the underlying action). After trial, the district court entered judgment for the respondents and denied any relief to appellants on their counterclaims. The appellants filed an appeal, but lacked sufficient resources to post a supersedeas bond or obtain a stay. Following trial, the respondents executed on the judgment and ostensibly acquired the appellants’ claims and defenses in the underlying action at a judgment execution sale. Thereafter, the respondents filed a motion seeking to substitute themselves as the successors in interest to appellants along with a motion to dismiss the appeal. In denying the motion to substitute and dismiss in its entirety, the Court clarified that although the “claims” held by appellants could be viewed as “personal property” pursuant to NRS 10.045 and therefore executed upon by the respondents in enforcement of the judgment pursuant to NRS 21.010 and Gallegos v. Malco Enterprises of NV, 127 Nev. ___, ____, 255 P.3d 1287, 1289 (2011); however, the “defenses” held by appellants were not similarly assignable. Because appellants had waived any “claims” by failing to raise those arguments on appeal, the only issues remaining on appeal were “defenses”, which respondents could not acquire and could not dismiss. Motion denied. (David Stoft, Associate in the Las Vegas office of McDonald Carano Wilson.)
Thursday, December 13, 2012
Casey v. Wells Fargo Bank, N.A., 128 Nev. Adv. Op. 64 (Dec. 13, 2012)
Before Justices Saitta, Pickering, and Hardesty. Opinion by Justice Pickering.
In this appeal, the Court considered a judgment summarily affirming a motion to confirm an arbitration award under the Uniform Arbitration Act. After receiving an arbitration award, Wells Fargo immediately filed a motion to confirm the arbitration award. Although the 90-day statutory period to challenge the award had not expired, the district court summarily granted the motion to confirm without allowing time to oppose it. The Court determined that this was error, holding that a district court may not confirm an arbitration award while there is still time within the 90-day period to challenge the arbitration award without allowing an opposition to the motion to confirm. There have been very few published cases interpreting the Uniform Arbitration Act and this opinion establishes the answers to some questions in addition to its primary holding. Specifically, the Court made clear that an action to confirm an arbitration award may be initiated by filing a motion to confirm the award and that a party has only ten days to oppose such a motion, despite the fact that it is an initial pleading. The Court left open the other important question of whether non-statutory bases for objecting to an arbitration award may be raised outside of the 90-day period to challenge the award. Reversed and remanded. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
In this appeal, the Court considered a judgment summarily affirming a motion to confirm an arbitration award under the Uniform Arbitration Act. After receiving an arbitration award, Wells Fargo immediately filed a motion to confirm the arbitration award. Although the 90-day statutory period to challenge the award had not expired, the district court summarily granted the motion to confirm without allowing time to oppose it. The Court determined that this was error, holding that a district court may not confirm an arbitration award while there is still time within the 90-day period to challenge the arbitration award without allowing an opposition to the motion to confirm. There have been very few published cases interpreting the Uniform Arbitration Act and this opinion establishes the answers to some questions in addition to its primary holding. Specifically, the Court made clear that an action to confirm an arbitration award may be initiated by filing a motion to confirm the award and that a party has only ten days to oppose such a motion, despite the fact that it is an initial pleading. The Court left open the other important question of whether non-statutory bases for objecting to an arbitration award may be raised outside of the 90-day period to challenge the award. Reversed and remanded. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
DeVries v. Gallio, 128 Nev. Adv. Op. 63 (Dec. 13, 2012)
Before Justices Saitta, Pickering, and Hardesty. Opinion by Justice Hardesty.
In this appeal, the Court reviewed the district court’s decisions resolving a property division and a spousal support issue that arose in a divorce decree. The Court addressed the factors for determining the community interest in a separate property business under the California cases Pereira v. Pereira, 103 P. 488 (Cal. 1909), and Van Camp v. Van Camp, 199 P. 885 (Cal. Ct. App. 1921), and agreed with the district court’s determination that the husband was not entitled to an award of an interest in the business. The husband also sought review of the district court’s rejection of spousal support. In addressing the award of spousal support, the district court did not conduct any evidentiary hearings on the spousal support request and failed to expressly analyze the factors for determining spousal support set forth in Sprenger v. Sprenger, 110 Nev. 855, 878 P.2d 284 (1994), and NRS 125.150(8). The Court found that the district court abused its discretion in making its determination not to award spousal support to either party, because it was unclear from the record if or how the district court applied the relevant case law or statutory factors to the limited evidence that was before it. In making this determination, the Court pointed out that all the evidentiary hearings conducted by the district court focused on the division of property between the parties, and that the district court failed to hear evidence on the support issue. The Court reasoned that it was therefore difficult to determine on what basis the district court arrived at its conclusion that neither party was entitled to spousal support. Affirmed in part and reversed in part. (Brent Keele, Associate in the Reno office of McDonald Carano Wilson.)
In this appeal, the Court reviewed the district court’s decisions resolving a property division and a spousal support issue that arose in a divorce decree. The Court addressed the factors for determining the community interest in a separate property business under the California cases Pereira v. Pereira, 103 P. 488 (Cal. 1909), and Van Camp v. Van Camp, 199 P. 885 (Cal. Ct. App. 1921), and agreed with the district court’s determination that the husband was not entitled to an award of an interest in the business. The husband also sought review of the district court’s rejection of spousal support. In addressing the award of spousal support, the district court did not conduct any evidentiary hearings on the spousal support request and failed to expressly analyze the factors for determining spousal support set forth in Sprenger v. Sprenger, 110 Nev. 855, 878 P.2d 284 (1994), and NRS 125.150(8). The Court found that the district court abused its discretion in making its determination not to award spousal support to either party, because it was unclear from the record if or how the district court applied the relevant case law or statutory factors to the limited evidence that was before it. In making this determination, the Court pointed out that all the evidentiary hearings conducted by the district court focused on the division of property between the parties, and that the district court failed to hear evidence on the support issue. The Court reasoned that it was therefore difficult to determine on what basis the district court arrived at its conclusion that neither party was entitled to spousal support. Affirmed in part and reversed in part. (Brent Keele, Associate in the Reno office of McDonald Carano Wilson.)
Thursday, December 6, 2012
Grisham v. Grisham, 128 Nev. Adv. Op. 60 (Dec. 6, 2012)
Before Justices Saitta, Pickering, and Hardesty. Opinion by Justice Pickering.
In this appeal, the Court upheld a final divorce decree based upon a written but unsigned property settlement agreement. Respondent and appellant reached a divorce settlement but the final draft contained interlineated handwritten changes and the parties failed to execute a clean copy prior to the prove-up hearing. At the hearing the draft was admitted as an exhibit, the handwritten changes were read into the record, the parties stipulated that the agreement would be binding, and the court approved the stipulation by minute order. Subsequently, appellant refused to sign the final draft of the agreement and challenged the decree approving the agreement. The Court confronted the interesting question of whether in-court proceedings could create an enforceable agreement. The Court held that District Court Rule 16 permits the enforcement of an agreement if it is entered in the court minutes following a stipulation. Applying general principles of contract law, the Court found that appellant had manifested consent to the agreement by his acknowledgement under oath that he had reviewed and agreed to it. The agreement was not invalidated by the district court’s failure to read the entire agreement out loud into the record. Although the Court noted that there may be a case where an in-court proceeding is so truncated by reliance on exhibits that an intent to be bound is absent, the facts before the Court reflected an implied consent that the agreement be entered in the minutes. Finally, the Court noted that a stipulated judgment made in open court satisfies the statute of frauds. Affirmed. (Adam Hosmer-Henner, Associate in the Reno office of McDonald Carano Wilson.)
In this appeal, the Court upheld a final divorce decree based upon a written but unsigned property settlement agreement. Respondent and appellant reached a divorce settlement but the final draft contained interlineated handwritten changes and the parties failed to execute a clean copy prior to the prove-up hearing. At the hearing the draft was admitted as an exhibit, the handwritten changes were read into the record, the parties stipulated that the agreement would be binding, and the court approved the stipulation by minute order. Subsequently, appellant refused to sign the final draft of the agreement and challenged the decree approving the agreement. The Court confronted the interesting question of whether in-court proceedings could create an enforceable agreement. The Court held that District Court Rule 16 permits the enforcement of an agreement if it is entered in the court minutes following a stipulation. Applying general principles of contract law, the Court found that appellant had manifested consent to the agreement by his acknowledgement under oath that he had reviewed and agreed to it. The agreement was not invalidated by the district court’s failure to read the entire agreement out loud into the record. Although the Court noted that there may be a case where an in-court proceeding is so truncated by reliance on exhibits that an intent to be bound is absent, the facts before the Court reflected an implied consent that the agreement be entered in the minutes. Finally, the Court noted that a stipulated judgment made in open court satisfies the statute of frauds. Affirmed. (Adam Hosmer-Henner, Associate in the Reno office of McDonald Carano Wilson.)
Aspen Financial Services v. Dist. Ct., 128 Nev. Adv. Op. 57 (Dec. 6, 2012)
Before the Court en banc. Opinion by Justice Saitta.
In this original petition for a writ of mandamus or prohibition, the Court addressed the district court’s denial of petitioners’ motion to stay a civil proceeding during the pendency of a parallel criminal investigation. Real parties in interest Kenneth and Yvonna Gragson brought civil suit against Petitioners, alleging that Petitioners defrauded them by operating a real estate Ponzi scheme. During the course of discovery, Petitioners learned that the Federal Bureau of Investigation (FBI) had begun a criminal investigation into the criminality of the scheme, that real parties in interest were putatively funneling obtained discovery to the FBI, and that the FBI investigation began at the behest of the real parties in interest. Petitioners then moved the district court to stay all discovery that would require testimonial statements from their officers and employees, which the district court summarily denied. In reviewing stays in the context of parallel proceedings, the Nevada Supreme Court noted that parallel criminal and civil proceedings often put defendants in a Catch-22: waive the Fifth Amendment privilege during testimony in the civil proceeding, which may reveal incriminating information to criminal investigators, or assert Fifth Amendment privileges and forego the opportunity to deny allegations in the civil suit, with the practical effect of “forfeiting” the civil matter. But this Catch-22 does not mandate a stay. Instead, such situations require a “highly nuanced” balancing of defendants’ Fifth Amendment rights against the plaintiffs’ interest in swift resolution of the civil suit and the court’s efficient use of judicial resources. In applying the Ninth Circuit’s five-factor test to balance the interests of all parties, the Court noted that Petitioners’ interests were minor because they had not yet been indicted and the record did not support the charge that the real parties interest were mere conduits for the FBI investigation. The plaintiffs’ interests in a swift resolution were significant because many of the key witnesses were elderly, meaning a stay could prevent them from testifying, and because the complex nature of the fraud claims required difficult proof that often erodes over time. Moreover, the court’s interest in efficiency was strong because no indictments were present, meaning a stay would have an indefinite, and perhaps protracted, duration, nor did Petitioners present any evidence showing they were likely to be indicted. Thus, because the balance tipped away from the Petitioners, the district court did not abuse its discretion when it denied their motion for a stay. Writ denied. (Rory T. Kay, Associate in the Las Vegas office of McDonald Carano Wilson LLP).
In this original petition for a writ of mandamus or prohibition, the Court addressed the district court’s denial of petitioners’ motion to stay a civil proceeding during the pendency of a parallel criminal investigation. Real parties in interest Kenneth and Yvonna Gragson brought civil suit against Petitioners, alleging that Petitioners defrauded them by operating a real estate Ponzi scheme. During the course of discovery, Petitioners learned that the Federal Bureau of Investigation (FBI) had begun a criminal investigation into the criminality of the scheme, that real parties in interest were putatively funneling obtained discovery to the FBI, and that the FBI investigation began at the behest of the real parties in interest. Petitioners then moved the district court to stay all discovery that would require testimonial statements from their officers and employees, which the district court summarily denied. In reviewing stays in the context of parallel proceedings, the Nevada Supreme Court noted that parallel criminal and civil proceedings often put defendants in a Catch-22: waive the Fifth Amendment privilege during testimony in the civil proceeding, which may reveal incriminating information to criminal investigators, or assert Fifth Amendment privileges and forego the opportunity to deny allegations in the civil suit, with the practical effect of “forfeiting” the civil matter. But this Catch-22 does not mandate a stay. Instead, such situations require a “highly nuanced” balancing of defendants’ Fifth Amendment rights against the plaintiffs’ interest in swift resolution of the civil suit and the court’s efficient use of judicial resources. In applying the Ninth Circuit’s five-factor test to balance the interests of all parties, the Court noted that Petitioners’ interests were minor because they had not yet been indicted and the record did not support the charge that the real parties interest were mere conduits for the FBI investigation. The plaintiffs’ interests in a swift resolution were significant because many of the key witnesses were elderly, meaning a stay could prevent them from testifying, and because the complex nature of the fraud claims required difficult proof that often erodes over time. Moreover, the court’s interest in efficiency was strong because no indictments were present, meaning a stay would have an indefinite, and perhaps protracted, duration, nor did Petitioners present any evidence showing they were likely to be indicted. Thus, because the balance tipped away from the Petitioners, the district court did not abuse its discretion when it denied their motion for a stay. Writ denied. (Rory T. Kay, Associate in the Las Vegas office of McDonald Carano Wilson LLP).
Holcomb v. Georgia Pacific, 128 Nev. Adv. Op. 56 (Dec. 6, 2012)
Before the Court en banc. Opinion by Chief Justice Cherry.
In this appeal from orders granting summary judgment in favor of respondents, the Court examined the appropriate causation test to use in connection with claims for mesothelioma resulting from exposure to asbestos-containing products. Prior to Holcomb, Nevada had not articulated a causation standard in asbestos cases for determining whether a plaintiff’s mesothelioma is sufficiently caused by exposure to a defendant’s products. After considering causation tests from California (“exposure-to-risk” test), Texas (“defendant-specific-dosage-plus-substantial factor” test) and the Fourth Circuit (“frequency, regularity, proximity” test), the Court adopted the test applied by a majority of federal circuits and state courts set forth in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986), as the test was explained in Gregg v. V-J Auto Parts, Inc., 943 A.2d 216, 225 (Pa. 2007), a mesothelioma case. Under the Lohrmann test, a plaintiff is required to prove exposure to a defendants’ product “on a regular basis over some extended period of time” and “in proximity to where the plaintiff actually worked,” such that it is probable or reasonable to infer, that the exposure caused the mesothelioma. The Court noted that although plaintiffs generally bear the burden in establishing causation, plaintiffs in asbestos litigation are often unable to provide precisely how much exposure they received from any particular defendant’s products due to a lengthy latency period between exposure and the manifestation of the injury, poor record keeping and the expense of reconstructing such data. The Court adopted the Lohrmann test because it balances the rights and interests of manufacturers with those of plaintiffs. In applying the Lohrmann test to the facts of Holcomb, the Court reversed the order granting summary judgment in favor of the respondent asbestos manufacturers, holding that appellants raised sufficient evidence of probable exposure to products manufactured by respondents Georgia Pacific, Kaiser Gypsum, and Kelly-Moore to defeat summary judgment. With respect to the asbestos supplier, respondent Union Carbide, the Court affirmed the order granting summary judgment. Affirmed in part, reversed in part, and remanded. (Kristen T. Gallagher, Associate in the Las Vegas office of McDonald Carano Wilson LLP).
In this appeal from orders granting summary judgment in favor of respondents, the Court examined the appropriate causation test to use in connection with claims for mesothelioma resulting from exposure to asbestos-containing products. Prior to Holcomb, Nevada had not articulated a causation standard in asbestos cases for determining whether a plaintiff’s mesothelioma is sufficiently caused by exposure to a defendant’s products. After considering causation tests from California (“exposure-to-risk” test), Texas (“defendant-specific-dosage-plus-substantial factor” test) and the Fourth Circuit (“frequency, regularity, proximity” test), the Court adopted the test applied by a majority of federal circuits and state courts set forth in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986), as the test was explained in Gregg v. V-J Auto Parts, Inc., 943 A.2d 216, 225 (Pa. 2007), a mesothelioma case. Under the Lohrmann test, a plaintiff is required to prove exposure to a defendants’ product “on a regular basis over some extended period of time” and “in proximity to where the plaintiff actually worked,” such that it is probable or reasonable to infer, that the exposure caused the mesothelioma. The Court noted that although plaintiffs generally bear the burden in establishing causation, plaintiffs in asbestos litigation are often unable to provide precisely how much exposure they received from any particular defendant’s products due to a lengthy latency period between exposure and the manifestation of the injury, poor record keeping and the expense of reconstructing such data. The Court adopted the Lohrmann test because it balances the rights and interests of manufacturers with those of plaintiffs. In applying the Lohrmann test to the facts of Holcomb, the Court reversed the order granting summary judgment in favor of the respondent asbestos manufacturers, holding that appellants raised sufficient evidence of probable exposure to products manufactured by respondents Georgia Pacific, Kaiser Gypsum, and Kelly-Moore to defeat summary judgment. With respect to the asbestos supplier, respondent Union Carbide, the Court affirmed the order granting summary judgment. Affirmed in part, reversed in part, and remanded. (Kristen T. Gallagher, Associate in the Las Vegas office of McDonald Carano Wilson LLP).
Einhorn v. BAC Home Loans Servicing, 128 Nev. Adv. Op. 61 (December 6, 2012)
Before Justices Gibbons, Pickering, and Hardesty. Opinion by Justice Pickering.
This appeal arises from Nevada’s residential Foreclosure Mediation Program (FMP), which is designed to give homeowners a meaningful opportunity to negotiate with their mortgagees to avoid foreclosure. Under NRS 107.086, if a homeowner elects FMP mediation, a non-judicial foreclosure cannot proceed without a certificate that mediation has been concluded. The Appellant homeowner’s mediation did not result in a loan modification, and an FMP certificate was issued, allowing foreclosure to go forward. Appellant filed a petition for judicial review in district court, seeking sanctions against Respondent for failing to meet its burden of producing key documents at mediation. The district court rejected the petition, finding that the loan servicer demonstrated a lack of bad faith. The mediator’s statement had reported a gap in the assignments of the original promissory note as well as a lost note certification, which were seemingly at odds with Respondent’s trustee’s certified claim to possess the original note. The district court found no irregularity in the certified document production. On appeal, the Supreme Court rejected this factual finding, declining to defer to the district court because there was no substantial evidence supporting it. However, the Court noted that the missing assignment had in fact been located by Appellant’s attorney and produced both at the mediation and in the district court action. Appellant, citing NRS 107.086 (which places an affirmative burden on the trust deed beneficiary to produce such documentation), argued that Respondent was not entitled to fill in its gap with a document that Appellant had produced. The Court disagreed and held that the purpose of the statute is not to burden mortgagees, but rather to ensure that the mortgagee actually owns the note and is the party with the authority to negotiate or foreclose. In this case, because the missing assignment was present at the mediation and sufficiently authenticated, the Court found that the purpose of the statute had been fulfilled and that Appellant had not been prejudiced, and concluded that the district court did not err in denying sanctions and allowing the FMP certificate to issue. Affirmed. (Mark Dunagan, Associate in the Reno office of McDonald Carano Wilson.)
This appeal arises from Nevada’s residential Foreclosure Mediation Program (FMP), which is designed to give homeowners a meaningful opportunity to negotiate with their mortgagees to avoid foreclosure. Under NRS 107.086, if a homeowner elects FMP mediation, a non-judicial foreclosure cannot proceed without a certificate that mediation has been concluded. The Appellant homeowner’s mediation did not result in a loan modification, and an FMP certificate was issued, allowing foreclosure to go forward. Appellant filed a petition for judicial review in district court, seeking sanctions against Respondent for failing to meet its burden of producing key documents at mediation. The district court rejected the petition, finding that the loan servicer demonstrated a lack of bad faith. The mediator’s statement had reported a gap in the assignments of the original promissory note as well as a lost note certification, which were seemingly at odds with Respondent’s trustee’s certified claim to possess the original note. The district court found no irregularity in the certified document production. On appeal, the Supreme Court rejected this factual finding, declining to defer to the district court because there was no substantial evidence supporting it. However, the Court noted that the missing assignment had in fact been located by Appellant’s attorney and produced both at the mediation and in the district court action. Appellant, citing NRS 107.086 (which places an affirmative burden on the trust deed beneficiary to produce such documentation), argued that Respondent was not entitled to fill in its gap with a document that Appellant had produced. The Court disagreed and held that the purpose of the statute is not to burden mortgagees, but rather to ensure that the mortgagee actually owns the note and is the party with the authority to negotiate or foreclose. In this case, because the missing assignment was present at the mediation and sufficiently authenticated, the Court found that the purpose of the statute had been fulfilled and that Appellant had not been prejudiced, and concluded that the district court did not err in denying sanctions and allowing the FMP certificate to issue. Affirmed. (Mark Dunagan, Associate in the Reno office of McDonald Carano Wilson.)
United Rentals Hwy. Techs. v. Wells Cargo, 128 Nev. Adv. Op. 59 (Dec. 6, 2012)
Before Justices Saitta, Pickering, and Hardesty. Opinion by Justice Hardesty.
In this appeal, the Court considered two issues regarding contractual indemnity clauses: (1) whether the district court erred in finding that a contractual indemnity clause limiting the indemnitor’s duty to defend “to the extent caused in whole or in part by the negligent acts or omissions or other fault of [the indemnitor]” did not require a determination that the indemnitor cause an injury before triggering the duty to indemnify and (2) whether the district court erred in finding that the indemnitor had a duty to defend regardless of the ultimate determination of cause and was entitled to attorney fees in the amount of the defense. As to the first issue, the Court concluded that contractual indemnity clauses containing “to the extent caused” language “must be strictly construed as limiting an indemnitee’s losses only to the extent the injuries were caused by the indemnitor.” Here, because the jury found that the indemnitor was not at fault for the underlying injury at issue in the case, the indemnitor had no duty to indemnify. The Court further held that, for the same reason, the indemnitor was not required to defend the indemnitee for its own negligence where the indemnitor was not found to have caused the injury. Accordingly, the award of attorney fees for defending the underlying action was improper. Reversed. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson.)
In this appeal, the Court considered two issues regarding contractual indemnity clauses: (1) whether the district court erred in finding that a contractual indemnity clause limiting the indemnitor’s duty to defend “to the extent caused in whole or in part by the negligent acts or omissions or other fault of [the indemnitor]” did not require a determination that the indemnitor cause an injury before triggering the duty to indemnify and (2) whether the district court erred in finding that the indemnitor had a duty to defend regardless of the ultimate determination of cause and was entitled to attorney fees in the amount of the defense. As to the first issue, the Court concluded that contractual indemnity clauses containing “to the extent caused” language “must be strictly construed as limiting an indemnitee’s losses only to the extent the injuries were caused by the indemnitor.” Here, because the jury found that the indemnitor was not at fault for the underlying injury at issue in the case, the indemnitor had no duty to indemnify. The Court further held that, for the same reason, the indemnitor was not required to defend the indemnitee for its own negligence where the indemnitor was not found to have caused the injury. Accordingly, the award of attorney fees for defending the underlying action was improper. Reversed. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson.)
Clark County v. S. Nevada Health Dist., 128 Nev. Adv. Op. 58 (Dec. 6, 2012)
Before the Court en banc. Opinion by Justice Douglas.
In this appeal, the Court addresses whether NRS 439.365 provides counties the authority to modify a health district’s budget from the figure requested by the health district pursuant to NRS 439.365(1) and to allocate this modified amount, rather than the amount requested, for the support of the health district. On a petition for writ of mandamus and prohibition, the district court concluded that the statue was ambiguous and, based on the legislative history, NRS 439.365 required Clark County to approve Southern Nevada Health District’s (SNHD) budget at the amount requested up to the statutory maximum. On appeal, the Supreme Court agreed that, when read as a whole, the statute is ambiguous; thus the Court turned to the legislative history to determine the statute’s proper construction. The Court concluded that NRS 439.365 requires a county to adopt the budget submitted by a health district, without modification, so long as the amount requested does not exceed the statutory maximum. With regard to the remedy utilized by the district court, the Court found no abuse of discretion in its grant of a writ of mandamus, but concluded that prohibition relief was improperly granted, as Clark County’s participation in the budgeting process did not involve the exercise of judicial functions. Affirmed in part and reversed in part. (Anthony Carano, Associate in the Reno office of McDonald Carano Wilson.)
In this appeal, the Court addresses whether NRS 439.365 provides counties the authority to modify a health district’s budget from the figure requested by the health district pursuant to NRS 439.365(1) and to allocate this modified amount, rather than the amount requested, for the support of the health district. On a petition for writ of mandamus and prohibition, the district court concluded that the statue was ambiguous and, based on the legislative history, NRS 439.365 required Clark County to approve Southern Nevada Health District’s (SNHD) budget at the amount requested up to the statutory maximum. On appeal, the Supreme Court agreed that, when read as a whole, the statute is ambiguous; thus the Court turned to the legislative history to determine the statute’s proper construction. The Court concluded that NRS 439.365 requires a county to adopt the budget submitted by a health district, without modification, so long as the amount requested does not exceed the statutory maximum. With regard to the remedy utilized by the district court, the Court found no abuse of discretion in its grant of a writ of mandamus, but concluded that prohibition relief was improperly granted, as Clark County’s participation in the budgeting process did not involve the exercise of judicial functions. Affirmed in part and reversed in part. (Anthony Carano, Associate in the Reno office of McDonald Carano Wilson.)
Thursday, October 25, 2012
Hernandez v. Bennett-Haron, 128 Nev. Adv. Op. 54 (Oct. 25, 2012)
Before the Court en banc. Opinion by Justice Hardesty.
In this appeal, the Court addressed the constitutionality of certain Clark County Code of Ordinance (“CCCO”) provisions that govern coroner’s inquests into officer-involved deaths. Appellants, five Nevada Highway Patrol Officers, filed complaints in connection with an incident that resulted in a man’s death and the ensuing coroner’s inquest proceeding. Appellants asserted that the inquest procedures and provisions put in place by the Clark County Board of Commissioners (1) violated their due process rights under the Nevada Constitution, and (2) the Board of County Commissioners unconstitutionally impinged on the Legislature’s authority to exclusively establish the jurisdiction of justices of the peace when it required justices of the peace to preside over the inquest process related to officer-involved deaths. In ruling on the appellants’ application for preliminary injunction, the district court rejected most of appellants’ claims and upheld all but one of the Clark County code sections related to inquest proceedings in connection with officer-involved deaths. On appeal, the Court examined the relevant CCCO provisions and due process considerations in determining whether the Clark County coroner’s inquest procedures for officer-involved death, as amended by the Board of Commissioners, is valid. The Court found that an inquest’s function is “purely investigative and fact-finding because no adjudication or determination of liability occurs,” thus, due process protections are not triggered by the process. On this point, the Court affirmed the district court’s ruling that rejected appellants’ due process arguments. Next, the Court considered whether the participation of justices of peace in the inquest proceedings violates the Nevada Constitution. In reaching its conclusion that participation by justices of the peace violates the Nevada Constitution, the Court noted that NRS 244.163(1) allows counties to appoint a coroner. Where a county, such as Clark County, has appointed a coroner, certain provisions of NRS Chapter 259 (Coroners) do not apply. Specifically, NRS 259.050 permits the use of justices of the peace where the sheriff serves as the de facto coroner. Because Clark County appointed a coroner, justices of the peace are not authorized to participate in Clark County inquest proceedings, thus, the Court determined that the Board of Commissioners impinged on the Legislature’s constitutionally delegated authority. Finally, the Court determined that striking only the offending provision would render the entire inquest scheme for officer-involved deaths ineffective because the proceedings could not go forward without a presiding officer. As a result, the Court struck the entire inquest scheme related to officer-involved deaths. Reversed. (Kristen T. Gallagher, Associate in the Las Vegas office of McDonald Carano Wilson).
In this appeal, the Court addressed the constitutionality of certain Clark County Code of Ordinance (“CCCO”) provisions that govern coroner’s inquests into officer-involved deaths. Appellants, five Nevada Highway Patrol Officers, filed complaints in connection with an incident that resulted in a man’s death and the ensuing coroner’s inquest proceeding. Appellants asserted that the inquest procedures and provisions put in place by the Clark County Board of Commissioners (1) violated their due process rights under the Nevada Constitution, and (2) the Board of County Commissioners unconstitutionally impinged on the Legislature’s authority to exclusively establish the jurisdiction of justices of the peace when it required justices of the peace to preside over the inquest process related to officer-involved deaths. In ruling on the appellants’ application for preliminary injunction, the district court rejected most of appellants’ claims and upheld all but one of the Clark County code sections related to inquest proceedings in connection with officer-involved deaths. On appeal, the Court examined the relevant CCCO provisions and due process considerations in determining whether the Clark County coroner’s inquest procedures for officer-involved death, as amended by the Board of Commissioners, is valid. The Court found that an inquest’s function is “purely investigative and fact-finding because no adjudication or determination of liability occurs,” thus, due process protections are not triggered by the process. On this point, the Court affirmed the district court’s ruling that rejected appellants’ due process arguments. Next, the Court considered whether the participation of justices of peace in the inquest proceedings violates the Nevada Constitution. In reaching its conclusion that participation by justices of the peace violates the Nevada Constitution, the Court noted that NRS 244.163(1) allows counties to appoint a coroner. Where a county, such as Clark County, has appointed a coroner, certain provisions of NRS Chapter 259 (Coroners) do not apply. Specifically, NRS 259.050 permits the use of justices of the peace where the sheriff serves as the de facto coroner. Because Clark County appointed a coroner, justices of the peace are not authorized to participate in Clark County inquest proceedings, thus, the Court determined that the Board of Commissioners impinged on the Legislature’s constitutionally delegated authority. Finally, the Court determined that striking only the offending provision would render the entire inquest scheme for officer-involved deaths ineffective because the proceedings could not go forward without a presiding officer. As a result, the Court struck the entire inquest scheme related to officer-involved deaths. Reversed. (Kristen T. Gallagher, Associate in the Las Vegas office of McDonald Carano Wilson).
In re Fontainebleau Las Vegas Holdings, 128 Nev. Adv. Op. 53 (Oct. 25, 2012)
Before the Court en banc (Justice Pickering recused). Opinion by Chief Justice Cherry.
In this action, the Court answered two of three questions certified by the United States Bankruptcy Court for the Southern District of Florida related to equitable subrogation and prospective contractual subrogation against mechanic’s lien claimants. The Court first determined that equitable subrogation does not apply against mechanic’s lien claimants because NRS 108.225 conclusively provides that mechanic’s liens will attain priority over any lien, mortgage, or encumbrance that attaches after commencement of construction. The Court determined that this conclusion comports with the Nevada Legislature’s express intent to provide a payment scheme for those who provide work and improvements to land. The Court next determined that mechanic’s lien claimants cannot execute prospective subordination agreements. To reach this answer, the Court examined NRS 108.2453 and NRS 108.2457 and determined that these relevant statutory provisions are ambiguous. Accordingly, the Court looked to legislative history and determined that the Nevada Legislature intended to prevent prospective lien waivers. However, the Court further held that neither NRS 108.2453 nor NRS 108.2457 prohibit non-prospective waivers whereby a mechanic’s lien claimant waives the right to priority after that right arises. The remaining question concerned an issue of fact that the Court refused to consider because the pending Florida case is in the early stages of discovery. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson.)
In this action, the Court answered two of three questions certified by the United States Bankruptcy Court for the Southern District of Florida related to equitable subrogation and prospective contractual subrogation against mechanic’s lien claimants. The Court first determined that equitable subrogation does not apply against mechanic’s lien claimants because NRS 108.225 conclusively provides that mechanic’s liens will attain priority over any lien, mortgage, or encumbrance that attaches after commencement of construction. The Court determined that this conclusion comports with the Nevada Legislature’s express intent to provide a payment scheme for those who provide work and improvements to land. The Court next determined that mechanic’s lien claimants cannot execute prospective subordination agreements. To reach this answer, the Court examined NRS 108.2453 and NRS 108.2457 and determined that these relevant statutory provisions are ambiguous. Accordingly, the Court looked to legislative history and determined that the Nevada Legislature intended to prevent prospective lien waivers. However, the Court further held that neither NRS 108.2453 nor NRS 108.2457 prohibit non-prospective waivers whereby a mechanic’s lien claimant waives the right to priority after that right arises. The remaining question concerned an issue of fact that the Court refused to consider because the pending Florida case is in the early stages of discovery. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson.)
Thursday, September 27, 2012
State of Nevada v. Reliant Energy, Inc., 128 Nev. Adv. Op. 46 (Sept. 27, 2012)
Before the Court En Banc (Justice Parraguirre recused). Opinion by Justice Cherry.
In this appeal, the Court considered whether principles of federal preemption precluded Appellants from asserting a claim for antitrust violations under Nevada’s Unfair Trade Practices Act (UTPA). The district court case arose out of Appellant’s allegation that Respondents conspired with Enron Corporation to drive up the price of natural gas in the Southern Nevada and Southeastern California markets. The district court granted Respondent’s motion to dismiss Appellants’ complaint, on the grounds that Appellants’ claim was preempted by federal law. The Nevada Supreme Court conducted a detailed analysis of the history of federal regulation of the production, transportation, and sale of natural gas. It concluded that although the Federal Energy Regulatory Commission (FERC) had gradually deregulated certain of those areas in order to increase market competition, it did not intend to open up regulation to the states. In other words, “[f]rom a practical standpoint, if each state intervened in this field with different regulations, the result would be a maelstrom of competing regulations that would hinder FERC’s oversight of the natural gas market.” Accordingly, Appellants’ claim was barred by the doctrine of field preemption. Affirmed. (Patrick J. Murch, Associate in the Las Vegas office of McDonald Carano Wilson).
In this appeal, the Court considered whether principles of federal preemption precluded Appellants from asserting a claim for antitrust violations under Nevada’s Unfair Trade Practices Act (UTPA). The district court case arose out of Appellant’s allegation that Respondents conspired with Enron Corporation to drive up the price of natural gas in the Southern Nevada and Southeastern California markets. The district court granted Respondent’s motion to dismiss Appellants’ complaint, on the grounds that Appellants’ claim was preempted by federal law. The Nevada Supreme Court conducted a detailed analysis of the history of federal regulation of the production, transportation, and sale of natural gas. It concluded that although the Federal Energy Regulatory Commission (FERC) had gradually deregulated certain of those areas in order to increase market competition, it did not intend to open up regulation to the states. In other words, “[f]rom a practical standpoint, if each state intervened in this field with different regulations, the result would be a maelstrom of competing regulations that would hinder FERC’s oversight of the natural gas market.” Accordingly, Appellants’ claim was barred by the doctrine of field preemption. Affirmed. (Patrick J. Murch, Associate in the Las Vegas office of McDonald Carano Wilson).
Edelstein v. Bank of New York Mellon, 128 Nev. Adv. Op. 48 (Sept. 27, 2012)
Before the Court En Banc. Opinion by Justice Hardesty.
In this appeal, the Court addressed the ability of a bank to foreclose when Mortgage Electronic Registration System (MERS) is the named beneficiary of a deed of trust. MERS is an electronic registration system that enables banks to repeatedly sell interests in loans secured by deeds of trust without the necessity of recording multiple transfers. Edelstein, a residential homeowner, challenged the Bank’s ability to foreclose on his property, arguing that by making MERS the beneficiary of the deed of trust and the Bank the beneficiary of the promissory note, the deed of trust and note had been irreparably split. The Court first recognized that to obtain a non-judicial foreclosure in Nevada, a party must be the beneficiary of a deed of trust and the holder of the note. The Court next addressed whether a note and deed of trust could be split and whether, if split, they could be unified to allow foreclosure. The Court adopted the approach from the Third Restatement of Property, under which a note and deed of trust are presumed to be transferred together unless the parties expressly state otherwise. Thus, the note and deed of trust could be split (and were in this case) and could be unified after being split by returning both to the same entity. In this case, the Bank had an assignment of the deed of trust from MERS and had the note, which had been endorsed blankly, rendering it negotiable by the bearer; therefore, the Bank had authority to foreclose. Affirmed. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson LLP).
In this appeal, the Court addressed the ability of a bank to foreclose when Mortgage Electronic Registration System (MERS) is the named beneficiary of a deed of trust. MERS is an electronic registration system that enables banks to repeatedly sell interests in loans secured by deeds of trust without the necessity of recording multiple transfers. Edelstein, a residential homeowner, challenged the Bank’s ability to foreclose on his property, arguing that by making MERS the beneficiary of the deed of trust and the Bank the beneficiary of the promissory note, the deed of trust and note had been irreparably split. The Court first recognized that to obtain a non-judicial foreclosure in Nevada, a party must be the beneficiary of a deed of trust and the holder of the note. The Court next addressed whether a note and deed of trust could be split and whether, if split, they could be unified to allow foreclosure. The Court adopted the approach from the Third Restatement of Property, under which a note and deed of trust are presumed to be transferred together unless the parties expressly state otherwise. Thus, the note and deed of trust could be split (and were in this case) and could be unified after being split by returning both to the same entity. In this case, the Bank had an assignment of the deed of trust from MERS and had the note, which had been endorsed blankly, rendering it negotiable by the bearer; therefore, the Bank had authority to foreclose. Affirmed. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson LLP).
Gold Ridge Partners v. Sierra Pac. Power, 128 Nev. Adv. Op. 47 (Sept. 27, 2012)
Before the Court En Banc (Justice Pickering recused). Opinion by Justice Parraguirre. Concurrence by Justice Gibbons, joined by Justice Cherry.
In this published order denying a motion for remand, the Court considered whether a public agency may abandon an eminent domain action, pursuant to its statutory authority, after having paid just compensation and after entry of a final order of condemnation, but before the issues pending on appeal are resolved. The Court reviewed NRS 37.180(1) to determine the circumstances under which a plaintiff may abandon a condemnation. Based on the plain language of the statute, the Court concluded that a plaintiff may abandon the condemnation proceeding so long as no more than thirty days had passed since entry of final judgment, which occurs after an appeal in a condemnation action. Thus, even if the plaintiff takes title to the property and pays the amount of the judgment for just compensation, the plaintiff may abandon the condemnation proceeding while other related issues, such as property valuation, are pending on appeal. Concluding that the plaintiff was entitled to abandon the condemnation proceeding, the Court considered whether a district court had jurisdiction to dismiss the action upon the plaintiff’s filing of a notice of abandonment and motion to vacate the judgment (which is treated as a motion to dismiss under NRS 37.180). The Court acknowledged that a notice of appeal generally divests the district court of jurisdiction for non-collateral matters; however, the Court noted that the language contained in NRS 37.180 provides that abandonment of a condemnation proceeding may occur “at any time” between the filing of the complaint and thirty days after entry of a final judgment. The statute also requires the district court to dismiss the proceeding upon the motion of any party after a notice of abandonment is filed. Accordingly, the Court concluded that the district court retains limited jurisdiction during the pendency of an appeal to consider a motion to dismiss/motion to vacate judgment filed pursuant to a plaintiff’s notice of abandonment in a condemnation action. As such, the Court denied the motion for remand as moot. Concurring in the order denying the motion to remand, Justices Gibbons and Cherry emphasized the facts that indicated the plaintiff may be equitably stopped from abandoning the proceedings under these circumstances. Motion denied as moot. (Amanda M. Perach, Associate in the Las Vegas office of McDonald Carano Wilson).
In this published order denying a motion for remand, the Court considered whether a public agency may abandon an eminent domain action, pursuant to its statutory authority, after having paid just compensation and after entry of a final order of condemnation, but before the issues pending on appeal are resolved. The Court reviewed NRS 37.180(1) to determine the circumstances under which a plaintiff may abandon a condemnation. Based on the plain language of the statute, the Court concluded that a plaintiff may abandon the condemnation proceeding so long as no more than thirty days had passed since entry of final judgment, which occurs after an appeal in a condemnation action. Thus, even if the plaintiff takes title to the property and pays the amount of the judgment for just compensation, the plaintiff may abandon the condemnation proceeding while other related issues, such as property valuation, are pending on appeal. Concluding that the plaintiff was entitled to abandon the condemnation proceeding, the Court considered whether a district court had jurisdiction to dismiss the action upon the plaintiff’s filing of a notice of abandonment and motion to vacate the judgment (which is treated as a motion to dismiss under NRS 37.180). The Court acknowledged that a notice of appeal generally divests the district court of jurisdiction for non-collateral matters; however, the Court noted that the language contained in NRS 37.180 provides that abandonment of a condemnation proceeding may occur “at any time” between the filing of the complaint and thirty days after entry of a final judgment. The statute also requires the district court to dismiss the proceeding upon the motion of any party after a notice of abandonment is filed. Accordingly, the Court concluded that the district court retains limited jurisdiction during the pendency of an appeal to consider a motion to dismiss/motion to vacate judgment filed pursuant to a plaintiff’s notice of abandonment in a condemnation action. As such, the Court denied the motion for remand as moot. Concurring in the order denying the motion to remand, Justices Gibbons and Cherry emphasized the facts that indicated the plaintiff may be equitably stopped from abandoning the proceedings under these circumstances. Motion denied as moot. (Amanda M. Perach, Associate in the Las Vegas office of McDonald Carano Wilson).
Thursday, September 13, 2012
Sierra Nevada Adm’rs v. Negriev, 128 Nev. Adv. Op. 45 (Sept. 13, 2012)
Before the Court En Banc. Opinion by Justice Gibbons.
In this appeal, the Court concluded that Nevada’s workers’ compensation laws require an average monthly wage calculation to include untaxed tip income if an injured employee had reported that tip income to the employer. Respondent worked as a bartender and was paid an hourly wage in addition to tip income, which Respondent regularly reported to the employer. Neither Respondent nor Employer paid taxes on the tip income or reported it to the IRS. Respondent then sustained a compensable back injury at work and received workers’ compensation benefits and a permanent partial disability award. The average monthly wage calculation used to determine his benefits, however, did not include Respondent’s untaxed tip earnings. The Court held that a plain reading of NRS 616B.227 requires the inclusion of any tips that were reported by the employee. The Court rejected Appellant’s argument that the inclusion of the reported but untaxed tips would result in a windfall for Respondent; holding instead that Respondent’s tax liability is a separate matter between the employee and the federal government. Affirmed. (Adam Hosmer-Henner, Associate in the Reno office of McDonald Carano Wilson LLP).
In this appeal, the Court concluded that Nevada’s workers’ compensation laws require an average monthly wage calculation to include untaxed tip income if an injured employee had reported that tip income to the employer. Respondent worked as a bartender and was paid an hourly wage in addition to tip income, which Respondent regularly reported to the employer. Neither Respondent nor Employer paid taxes on the tip income or reported it to the IRS. Respondent then sustained a compensable back injury at work and received workers’ compensation benefits and a permanent partial disability award. The average monthly wage calculation used to determine his benefits, however, did not include Respondent’s untaxed tip earnings. The Court held that a plain reading of NRS 616B.227 requires the inclusion of any tips that were reported by the employee. The Court rejected Appellant’s argument that the inclusion of the reported but untaxed tips would result in a windfall for Respondent; holding instead that Respondent’s tax liability is a separate matter between the employee and the federal government. Affirmed. (Adam Hosmer-Henner, Associate in the Reno office of McDonald Carano Wilson LLP).
Thursday, August 9, 2012
Certified Fire Prot. v. Precision Constr., 128 Nev. Adv. Op. 35 (Aug. 9, 2012)
Before Justices Cherry, Gibbons and Pickering. Opinion by Justice Pickering.
In this appeal, the Court clarified the doctrine of quantum meruit, ultimately affirming a district court judgment concluding that there was no express or implied contract and that there had been no benefit conferred on the defendant. The Court explained that quantum meruit “is a cause of action in two fields: restitution and contract.” Essentially, it is a measure of damages that can be used to determine the amount of restitution under the equitable theory of unjust enrichment or an award of damages under the legal theory of implied contract. Relative to an “implied-in-fact” contract, “a party may invoke quantum meruit as a gap-filler to supply the absent term” of the price to be paid for the good or service after it is determined that “the parties intended to contract and promises were exchanged, the general obligations for which must be sufficiently clear.” In affirming the lower court, the Court determined as to appellant “there there was no contract, express or implied, for the design related work standing alone” and “too many gaps to fill in the asserted contract for quantum meruit to take hold.” Moving to the claim as based on “restitution” the Court explained that a litigant “must establish each element of unjust enrichment.” In that regard, the Court required a showing that the respondent received a benefit from the services provided by the appellant, but clarified that a “benefit” is “not confined to the retention of money or property,” it can include “services beneficial to or at the request of the other” and “denotes any form of advantage.” (internal quotations omitted). Because the appellant had not conveyed a benefit to the respondent, the Court affirmed the district court’s conclusion that there had been no unjust enrichment. Finally, the Court addressed respondent’s claim for attorneys’ fees under NRCP 68 and NRS 17.115 or NRS 108.237, the Court determined that it is not necessary for the district court to make express findings as to each of the Beatty factors in using its discretion to award or deny attorneys fees under NRCP 68 and/or NRS 17.115. As to respondent’s request for fees under NRS 108.237, the court affirmed the district court’s denial of those fees despite there being no explicit finding as to the request for fees under NRS 108.237, finding that the record supported a finding that appellant had “a reasonable basis” for its claims. Affirmed. (David J. Stoft, Associate in the Las Vegas office of McDonald Carano Wilson LLP).
In this appeal, the Court clarified the doctrine of quantum meruit, ultimately affirming a district court judgment concluding that there was no express or implied contract and that there had been no benefit conferred on the defendant. The Court explained that quantum meruit “is a cause of action in two fields: restitution and contract.” Essentially, it is a measure of damages that can be used to determine the amount of restitution under the equitable theory of unjust enrichment or an award of damages under the legal theory of implied contract. Relative to an “implied-in-fact” contract, “a party may invoke quantum meruit as a gap-filler to supply the absent term” of the price to be paid for the good or service after it is determined that “the parties intended to contract and promises were exchanged, the general obligations for which must be sufficiently clear.” In affirming the lower court, the Court determined as to appellant “there there was no contract, express or implied, for the design related work standing alone” and “too many gaps to fill in the asserted contract for quantum meruit to take hold.” Moving to the claim as based on “restitution” the Court explained that a litigant “must establish each element of unjust enrichment.” In that regard, the Court required a showing that the respondent received a benefit from the services provided by the appellant, but clarified that a “benefit” is “not confined to the retention of money or property,” it can include “services beneficial to or at the request of the other” and “denotes any form of advantage.” (internal quotations omitted). Because the appellant had not conveyed a benefit to the respondent, the Court affirmed the district court’s conclusion that there had been no unjust enrichment. Finally, the Court addressed respondent’s claim for attorneys’ fees under NRCP 68 and NRS 17.115 or NRS 108.237, the Court determined that it is not necessary for the district court to make express findings as to each of the Beatty factors in using its discretion to award or deny attorneys fees under NRCP 68 and/or NRS 17.115. As to respondent’s request for fees under NRS 108.237, the court affirmed the district court’s denial of those fees despite there being no explicit finding as to the request for fees under NRS 108.237, finding that the record supported a finding that appellant had “a reasonable basis” for its claims. Affirmed. (David J. Stoft, Associate in the Las Vegas office of McDonald Carano Wilson LLP).
Consipio Holding, BV v. Carlberg, 128 Nev. Adv. Op. 43 (Aug. 9, 2012)
Before the Court en banc. Opinion by Justice Gibbons.
This action arose out of a dispute between a Nevada corporation and its non-resident officers and directors. Several shareholders of Private Media Group, Inc. (PRVT), a corporation that is incorporated in Nevada with its principle place of business in Spain, brought derivative claims against several officers and directors of PRVT who were all residents of European nations. Only three of the defendants had ever been to Nevada previously, one visited to consult with his attorneys in preparation for this lawsuit, and the others had been to Nevada several years previously for purely personal reasons. The defendants moved to dismiss the case for lack of personal jurisdiction, and the district court granted the motion and certified the dismissal orders as final under NRCP 54(b). The court reversed the district court’s orders, and held that a district court can exercise personal jurisdiction over nonresident officers and directors who directly harm a Nevada corporation. The Court reached this conclusion by examining its previous jurisprudence on personal jurisdiction, including Trump v. Dist. Ct., 109 Nev. 687 (1993), and held that because a corporation that is incorporated in Nevada is a Nevada citizen, when officers or directors directly harm a Nevada corporation, they are harming a Nevada citizen and therefore purposefully directing their conduct toward Nevada. The court also found support in NRS 78.135(1) for the exercise of personal jurisdiction, holding that because that statute authorizes lawsuits against officers or directors of a Nevada corporation for violation of their authority, those officers and directors are on notice that they could be subject to a derivative suit under Nevada’s laws. The court also addressed Respondents’ argument that the fiduciary shield doctrine should apply, noting that the fiduciary shield doctrine does not apply in Nevada because Nevada’s long-arm statute extends to the limits of due process. Finally, the court noted that while the district court held hearings on the motions and ultimately concluded that an individual’s position as a Nevada corporation’s director does not automatically subject them to jurisdiction in Nevada, the district court needed to conduct further factual analysis in order to determine whether the Respondents’ specific conduct in this case subjected them to jurisdiction in Nevada. Vacated and remanded for further proceedings. (Megan L. Starich, Associate in the Reno office of McDonald Carano Wilson LLP).
This action arose out of a dispute between a Nevada corporation and its non-resident officers and directors. Several shareholders of Private Media Group, Inc. (PRVT), a corporation that is incorporated in Nevada with its principle place of business in Spain, brought derivative claims against several officers and directors of PRVT who were all residents of European nations. Only three of the defendants had ever been to Nevada previously, one visited to consult with his attorneys in preparation for this lawsuit, and the others had been to Nevada several years previously for purely personal reasons. The defendants moved to dismiss the case for lack of personal jurisdiction, and the district court granted the motion and certified the dismissal orders as final under NRCP 54(b). The court reversed the district court’s orders, and held that a district court can exercise personal jurisdiction over nonresident officers and directors who directly harm a Nevada corporation. The Court reached this conclusion by examining its previous jurisprudence on personal jurisdiction, including Trump v. Dist. Ct., 109 Nev. 687 (1993), and held that because a corporation that is incorporated in Nevada is a Nevada citizen, when officers or directors directly harm a Nevada corporation, they are harming a Nevada citizen and therefore purposefully directing their conduct toward Nevada. The court also found support in NRS 78.135(1) for the exercise of personal jurisdiction, holding that because that statute authorizes lawsuits against officers or directors of a Nevada corporation for violation of their authority, those officers and directors are on notice that they could be subject to a derivative suit under Nevada’s laws. The court also addressed Respondents’ argument that the fiduciary shield doctrine should apply, noting that the fiduciary shield doctrine does not apply in Nevada because Nevada’s long-arm statute extends to the limits of due process. Finally, the court noted that while the district court held hearings on the motions and ultimately concluded that an individual’s position as a Nevada corporation’s director does not automatically subject them to jurisdiction in Nevada, the district court needed to conduct further factual analysis in order to determine whether the Respondents’ specific conduct in this case subjected them to jurisdiction in Nevada. Vacated and remanded for further proceedings. (Megan L. Starich, Associate in the Reno office of McDonald Carano Wilson LLP).
Rolf Jensen & Associates, Inc. v. Mandalay Corporation et al., 128 Nev. Adv. Op. 42 (August 9, 2012)
Before the Court en banc (Justice Pickering recused). Opinion by Justice Saitta.
Rolf Jensen & Associates, Inc. (“Rolf Jensen”) was hired by Mandalay Corporation (“Mandalay”) to provide consulting services for the construction of an expansion to the casino in compliance with the Americans with Disabilities Act of 1990 (“ADA”). The construction contract called for Rolf Jensen to indemnify Mandalay for damages arising from any act, omission, or willful misconduct by Rolf Jensen in its performance of its obligations. The Department of Justice found post-construction handicap accessibility violations at the casino. Mandalay agreed to retrofit at an estimated cost of $20 million and sued Rolf Jensen for indemnification, breach of contract, breach of express warranty, and negligent misrepresentation. Rolf Jensen argued that claims were preempted by the ADA. Under the ADA, regardless of the intent of an owner of a place of public accommodation, when the facility is not built to be readily accessible to disabled individuals, the owner is liable for the unlawful discrimination. The ADA contains no provisions permitting indemnification or allocation of liability, except in the context of a landlord-tenant relationship. The Court concluded that allowing the indemnification claim would weaken owners’ incentive to prevent violations of the ADA and would conflict with the ADA’s purpose. Owners could use construction contracts to shield themselves from the ADA and ignore their nondelegable ADA responsibilities. The Court further stated that an owner such as Mandalay, a highly sophisticated entity, is in the best position to prevent violations of the ADA. Therefore, the Court ruled that Mandalay’s indemnification claims were preempted by the ADA. However, the Court further ruled that Mandalay’s claims for breach of contract, breach of express warranty, and negligent misrepresentation were also preempted because the damages Mandalay sought only recovery of the retrofitting costs under those claims. The Court ruled that these were simply restated claims for indemnification. Petition granted; district court directed to enter summary judgment in favor of Rolf Jensen. Affirmed in part and reversed in part. (Joseph P. Schrage, Associate in the Las Vegas office of McDonald Carano Wilson LLP).
Rolf Jensen & Associates, Inc. (“Rolf Jensen”) was hired by Mandalay Corporation (“Mandalay”) to provide consulting services for the construction of an expansion to the casino in compliance with the Americans with Disabilities Act of 1990 (“ADA”). The construction contract called for Rolf Jensen to indemnify Mandalay for damages arising from any act, omission, or willful misconduct by Rolf Jensen in its performance of its obligations. The Department of Justice found post-construction handicap accessibility violations at the casino. Mandalay agreed to retrofit at an estimated cost of $20 million and sued Rolf Jensen for indemnification, breach of contract, breach of express warranty, and negligent misrepresentation. Rolf Jensen argued that claims were preempted by the ADA. Under the ADA, regardless of the intent of an owner of a place of public accommodation, when the facility is not built to be readily accessible to disabled individuals, the owner is liable for the unlawful discrimination. The ADA contains no provisions permitting indemnification or allocation of liability, except in the context of a landlord-tenant relationship. The Court concluded that allowing the indemnification claim would weaken owners’ incentive to prevent violations of the ADA and would conflict with the ADA’s purpose. Owners could use construction contracts to shield themselves from the ADA and ignore their nondelegable ADA responsibilities. The Court further stated that an owner such as Mandalay, a highly sophisticated entity, is in the best position to prevent violations of the ADA. Therefore, the Court ruled that Mandalay’s indemnification claims were preempted by the ADA. However, the Court further ruled that Mandalay’s claims for breach of contract, breach of express warranty, and negligent misrepresentation were also preempted because the damages Mandalay sought only recovery of the retrofitting costs under those claims. The Court ruled that these were simply restated claims for indemnification. Petition granted; district court directed to enter summary judgment in favor of Rolf Jensen. Affirmed in part and reversed in part. (Joseph P. Schrage, Associate in the Las Vegas office of McDonald Carano Wilson LLP).
In re Contested Election of Mallory, 128 Nev. Adv. Op. 41 (Aug. 9, 2012)
Before the Court en banc. Opinion by Justice Saitta.
Respondent Arthur E. Mallory (“Respondent”) is Churchill County’s district attorney. He was first elected to the office in 1998 and was elected to a fourth consecutive four-year term of office in 2010. Following the most recent reelection, Appellant John O’Connor (“Appellant”) filed a petition to set aside Respondent’s reelection due to term limitations under the Nevada Constitution. The issue presented in this appeal is whether the office of district attorney is a state office for the purpose of determining whether district attorneys are subject to term limits under the “state office” portion of Article 15, Section 3(2) of the Nevada Constitution. Under Article 15, Section 3(2) of the Nevada Constitution, individuals elected to a “state office” or “local governing body” may only serve for 12 years unless the Constitution provides otherwise. The Nevada Supreme Court determined, without need to rely on Secretary of State v. Burk, 124 Nev. 579, 188 P.3d 1112 (2008), as done by the district court, that Article 4, Section 32 of the Nevada Constitution addresses the Legislature’s authority to provide for and abolish certain county offices including “District Attorneys.” By identifying district attorneys as county officers, it necessarily follows that the office of district attorney cannot be considered a “state office.” Thus, the office of district attorney is not subject to the term-limit provision of Article 15, Section 3(2). Affirmed. (Lisa M. Wiltshire, Associate in the Reno office of McDonald Carano Wilson LLP).
Respondent Arthur E. Mallory (“Respondent”) is Churchill County’s district attorney. He was first elected to the office in 1998 and was elected to a fourth consecutive four-year term of office in 2010. Following the most recent reelection, Appellant John O’Connor (“Appellant”) filed a petition to set aside Respondent’s reelection due to term limitations under the Nevada Constitution. The issue presented in this appeal is whether the office of district attorney is a state office for the purpose of determining whether district attorneys are subject to term limits under the “state office” portion of Article 15, Section 3(2) of the Nevada Constitution. Under Article 15, Section 3(2) of the Nevada Constitution, individuals elected to a “state office” or “local governing body” may only serve for 12 years unless the Constitution provides otherwise. The Nevada Supreme Court determined, without need to rely on Secretary of State v. Burk, 124 Nev. 579, 188 P.3d 1112 (2008), as done by the district court, that Article 4, Section 32 of the Nevada Constitution addresses the Legislature’s authority to provide for and abolish certain county offices including “District Attorneys.” By identifying district attorneys as county officers, it necessarily follows that the office of district attorney cannot be considered a “state office.” Thus, the office of district attorney is not subject to the term-limit provision of Article 15, Section 3(2). Affirmed. (Lisa M. Wiltshire, Associate in the Reno office of McDonald Carano Wilson LLP).
Washoe County v. Otto, 128 Nev. Adv. Op. 40 (Aug. 9, 2012)
Before the Court en banc (Justice Pickering recused). Opinion by Justice Hardesty.
In this appeal, another case in the continuing saga of challenges to property taxes in Incline Village, the Court held that a party must strictly comply with the Nevada Administrative Procedure Act naming requirement found at NRS 233B.130(2)(a), as a prerequisite to invoke the district court’s jurisdiction. When a petitioner fails to name in its petition each party of record to the underlying administrative proceedings, the petition is jurisdictionally defective and must be dismissed. Further, if the petitioner fails to invoke the district court’s jurisdiction by naming the proper parties within the statutory time limit, the petition may not subsequently be amended to cure the jurisdictional defect. Affirmed. (Brent Keele, Associate in the Reno office of McDonald Carano Wilson LLP).
In this appeal, another case in the continuing saga of challenges to property taxes in Incline Village, the Court held that a party must strictly comply with the Nevada Administrative Procedure Act naming requirement found at NRS 233B.130(2)(a), as a prerequisite to invoke the district court’s jurisdiction. When a petitioner fails to name in its petition each party of record to the underlying administrative proceedings, the petition is jurisdictionally defective and must be dismissed. Further, if the petitioner fails to invoke the district court’s jurisdiction by naming the proper parties within the statutory time limit, the petition may not subsequently be amended to cure the jurisdictional defect. Affirmed. (Brent Keele, Associate in the Reno office of McDonald Carano Wilson LLP).
Liapis v. Dist. Ct., 128 Nev. Adv. Op. 39 (Aug. 9, 2012)
Before Justices Cherry, Pickering, and Hardesty. Opinion by Justice Hardesty.
In this original petition for writ of mandamus, the Court faced two novel issues: should an attorney who represents one of his parents in a divorce action between both parents be disqualified either (1) because the attorney’s representation will constitute the appearance of impropriety or (2) because representing the parent will violate the concurrent-conflict-of-interest rule in Nevada Rule of Professional Conduct (RPC) 1.7? In answering the first issue, the Court held that there was no disqualifying appearance of impropriety because the appearance of impropriety is no longer recognized by the American Bar Association and the Court has not recognized the appearance of impropriety as a basis for disqualifying counsel except in the limited circumstance of a public lawyer. Thus, as a general matter, an appearance of impropriety without more does not support a lawyer’s disqualification. The Court resolved the second issue by holding there was no violation of RPC 1.7 unless there was an ethical breach by the attorney that affects the fairness of the entire litigation or a proven confidential relationship between the nonclient parent and the attorney. Moreover, the Court held that the nonclient parent did not have standing to assert a conflict claim, largely because she was not a former or current client of her son, the mother-son relationship did not establish a confidential relationship, and there was no suggestion of any other legally recognizable confidential relationship. Because the district court manifestly abused its discretion in disqualifying counsel, the court granted the appellant’s petition and instructed the district court to vacate its order granting Respondent’s motion to disqualify counsel. (Rory T. Kay, Associate in the Las Vegas office of McDonald Carano Wilson LLP).
In this original petition for writ of mandamus, the Court faced two novel issues: should an attorney who represents one of his parents in a divorce action between both parents be disqualified either (1) because the attorney’s representation will constitute the appearance of impropriety or (2) because representing the parent will violate the concurrent-conflict-of-interest rule in Nevada Rule of Professional Conduct (RPC) 1.7? In answering the first issue, the Court held that there was no disqualifying appearance of impropriety because the appearance of impropriety is no longer recognized by the American Bar Association and the Court has not recognized the appearance of impropriety as a basis for disqualifying counsel except in the limited circumstance of a public lawyer. Thus, as a general matter, an appearance of impropriety without more does not support a lawyer’s disqualification. The Court resolved the second issue by holding there was no violation of RPC 1.7 unless there was an ethical breach by the attorney that affects the fairness of the entire litigation or a proven confidential relationship between the nonclient parent and the attorney. Moreover, the Court held that the nonclient parent did not have standing to assert a conflict claim, largely because she was not a former or current client of her son, the mother-son relationship did not establish a confidential relationship, and there was no suggestion of any other legally recognizable confidential relationship. Because the district court manifestly abused its discretion in disqualifying counsel, the court granted the appellant’s petition and instructed the district court to vacate its order granting Respondent’s motion to disqualify counsel. (Rory T. Kay, Associate in the Las Vegas office of McDonald Carano Wilson LLP).
Bonnell v. Lawrence, 128 Nev. Adv. Op. 37, 282 P.3d 712 (Aug. 9, 2012)
Before Justices Cherry, Pickering, and Hardesty. Opinion by Justice Pickering.
In this appeal, the Court addressed the standard required for a party who brings an independent action for relief of judgment under NRCP 60(b). NRCP 60(b) permits relief from judgment by either motion or an independent action. While motions for relief from judgment are governed by specific time deadlines, the reference to an independent action is made only in a savings clause in NRCP 60(b), which states that the rule does not preclude courts from entertaining an independent action to relieve a party from judgment. Since the strict timelines of NRCP 60(b) do not apply to independent actions, the Court explained, such an action should be available only to prevent a “grave miscarriage of justice.” The Court held that in this case, Bonnell’s allegations of inadequate notice regarding summary judgment did not constitute the “grave miscarriage of justice” required to sustain an independent action under NRCP 60(b). Moreover, the Court noted that Respondents’ counsel’s actions did not excuse Bonnell’s failure to bring a motion for relief under NRCP 60(b) within the Rule’s 6-month period. Failing to find anything in the record of either suit that would suggest the threat of a “grave miscarriage of justice,” the Supreme Court affirmed the district court’s dismissal of the independent action. Affirmed. (Jeff S. Riesenmy, Associate in the Las Vegas office of McDonald Carano Wilson.)
In this appeal, the Court addressed the standard required for a party who brings an independent action for relief of judgment under NRCP 60(b). NRCP 60(b) permits relief from judgment by either motion or an independent action. While motions for relief from judgment are governed by specific time deadlines, the reference to an independent action is made only in a savings clause in NRCP 60(b), which states that the rule does not preclude courts from entertaining an independent action to relieve a party from judgment. Since the strict timelines of NRCP 60(b) do not apply to independent actions, the Court explained, such an action should be available only to prevent a “grave miscarriage of justice.” The Court held that in this case, Bonnell’s allegations of inadequate notice regarding summary judgment did not constitute the “grave miscarriage of justice” required to sustain an independent action under NRCP 60(b). Moreover, the Court noted that Respondents’ counsel’s actions did not excuse Bonnell’s failure to bring a motion for relief under NRCP 60(b) within the Rule’s 6-month period. Failing to find anything in the record of either suit that would suggest the threat of a “grave miscarriage of justice,” the Supreme Court affirmed the district court’s dismissal of the independent action. Affirmed. (Jeff S. Riesenmy, Associate in the Las Vegas office of McDonald Carano Wilson.)
DeBoer v. Sr. Bridges of Sparks Fam. Hosp., 128 Nev. Adv. Op. 38 (Aug. 9, 2012)
Before Justices Cherry, Pickering, and Hardesty.
Opinion by Justice Cherry.
In this appeal, the court examined the duty of care owed by a medical facility when performing nonmedical functions. The Named Appellant, as guardian for a cognitively impaired adult, appealed the district court’s dismissal of a negligence action brought against a senior care facility in connection with the execution of a power of attorney that resulted in Appellant being injured by a third party. An employee of Respondent facilitated a power of attorney in favor of a third party, which was signed by Appellant. The third party financially exploited Appellant, and Appellant sued Respondent for breaching its duty of care by allowing Appellant to sign the power of attorney, when a reasonable investigation would have established that Appellant lacked the requisite mental competence to protect herself from exploitation. The district court dismissed the claim pursuant to a NRCP 12(b)(5) motion, finding that Respondent owed Appellant no duty beyond providing competent medical care. On appeal, the Supreme Court overturned the dismissal, establishing that because immunity from general liability cannot be enjoyed simply due to one’s legal status, medical facilities are required to conform to normal standards of reasonableness under general principles of tort law when performing nonmedical functions. Because potential factual issues existed as to whether Respondent acted negligently in carrying out nonmedical functions, the court reversed and remanded. (Mark Dunagan, Associate in the Reno office of McDonald Carano Wilson LLP).
In this appeal, the court examined the duty of care owed by a medical facility when performing nonmedical functions. The Named Appellant, as guardian for a cognitively impaired adult, appealed the district court’s dismissal of a negligence action brought against a senior care facility in connection with the execution of a power of attorney that resulted in Appellant being injured by a third party. An employee of Respondent facilitated a power of attorney in favor of a third party, which was signed by Appellant. The third party financially exploited Appellant, and Appellant sued Respondent for breaching its duty of care by allowing Appellant to sign the power of attorney, when a reasonable investigation would have established that Appellant lacked the requisite mental competence to protect herself from exploitation. The district court dismissed the claim pursuant to a NRCP 12(b)(5) motion, finding that Respondent owed Appellant no duty beyond providing competent medical care. On appeal, the Supreme Court overturned the dismissal, establishing that because immunity from general liability cannot be enjoyed simply due to one’s legal status, medical facilities are required to conform to normal standards of reasonableness under general principles of tort law when performing nonmedical functions. Because potential factual issues existed as to whether Respondent acted negligently in carrying out nonmedical functions, the court reversed and remanded. (Mark Dunagan, Associate in the Reno office of McDonald Carano Wilson LLP).
Road & Highway Builders v. N. Nev. Rebar, 128 Nev. Adv. Op. 36 (Aug. 9, 2012)
Before Justices Cherry, Gibbons, and Pickering. Opinion by Justice Cherry.
In this appeal, the Court held that a claim for fraudulent inducement is barred as a matter of law if the claim directly contradicts the terms of the written contract. The Court based its conclusion on principles underlying the parol evidence rule and broadly suggested that any claim that is contrary to the written terms of a complete contract would be barred as a matter of law. In addressing compensatory damages for the claims of breach of contract and breach of the covenant of good faith and fair dealing, the Court reiterated that damages for breach of contract should include lost profit or expectancy damages. The Court allowed the award of lost profits for work that had been performed despite the fact that the contract was terminable at will, distinguishing a case that prevented the recovery of lost future profits when a contract is terminable at will. Affirmed in part and reversed in part. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson LLP).
In this appeal, the Court held that a claim for fraudulent inducement is barred as a matter of law if the claim directly contradicts the terms of the written contract. The Court based its conclusion on principles underlying the parol evidence rule and broadly suggested that any claim that is contrary to the written terms of a complete contract would be barred as a matter of law. In addressing compensatory damages for the claims of breach of contract and breach of the covenant of good faith and fair dealing, the Court reiterated that damages for breach of contract should include lost profit or expectancy damages. The Court allowed the award of lost profits for work that had been performed despite the fact that the contract was terminable at will, distinguishing a case that prevented the recovery of lost future profits when a contract is terminable at will. Affirmed in part and reversed in part. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson LLP).
Thursday, August 2, 2012
State, Bus. & Indus. v. Nev. Ass’n Servs., 128 Nev. Adv. Op. 34 (Aug. 2, 2012)
Before Justices Douglas, Gibbons, and Parraguirre. Opinion by Justice Gibbons.
This action arose out of a dispute between the State of Nevada Department of Business and Industry, the Financial Institutions Division and its Commissioner (Department) and Nevada Association Services (NAS). In November 2010, the Department issued an advisory opinion in which it interpreted certain statues within NRS 116, in particular NRS 116.3116, and their importance in the Department’s regulation of collection agencies. NAS filed its complaint and motion for preliminary injunction in district court, arguing that the Department lacked jurisdiction to issue advisory opinions interpreting provisions of NRS Chapter 116. The district court granted NAS’s request for a preliminary injunction. The Court affirmed the district court’s order. In reaching this conclusion, the Court reviewed several sections of NRS 116. Under NRS 116.615, the Court found the language to be clear that the Commission for Common Interest Communities and Condominium Hotels and the Real Estate Division are responsible for regulating and administering the chapter and there is no provision granting any other commission or department the authority to regulate or interpret the language of the chapter. Consequently, the Court found the Department lacked jurisdiction to issue an advisory opinion interpreting NRS Chapter 116 and thus the district court did not abuse its discretion in determining that NAS had a likelihood of success on the merits. Furthermore, the Court held the district court properly determined that the mere act of filing a disciplinary action against NAS would cause irreparable harm. In its findings, the Court explained that it was possible for the Department to revoke NAS’s license without a hearing under its powers , thus if such an instance occurred, NAS would be unable to conduct business during that time which could lead to irreparable harm. Affirmed. (Anthony Carano, Associate in the Reno office of McDonald Carano Wilson LLP).
This action arose out of a dispute between the State of Nevada Department of Business and Industry, the Financial Institutions Division and its Commissioner (Department) and Nevada Association Services (NAS). In November 2010, the Department issued an advisory opinion in which it interpreted certain statues within NRS 116, in particular NRS 116.3116, and their importance in the Department’s regulation of collection agencies. NAS filed its complaint and motion for preliminary injunction in district court, arguing that the Department lacked jurisdiction to issue advisory opinions interpreting provisions of NRS Chapter 116. The district court granted NAS’s request for a preliminary injunction. The Court affirmed the district court’s order. In reaching this conclusion, the Court reviewed several sections of NRS 116. Under NRS 116.615, the Court found the language to be clear that the Commission for Common Interest Communities and Condominium Hotels and the Real Estate Division are responsible for regulating and administering the chapter and there is no provision granting any other commission or department the authority to regulate or interpret the language of the chapter. Consequently, the Court found the Department lacked jurisdiction to issue an advisory opinion interpreting NRS Chapter 116 and thus the district court did not abuse its discretion in determining that NAS had a likelihood of success on the merits. Furthermore, the Court held the district court properly determined that the mere act of filing a disciplinary action against NAS would cause irreparable harm. In its findings, the Court explained that it was possible for the Department to revoke NAS’s license without a hearing under its powers , thus if such an instance occurred, NAS would be unable to conduct business during that time which could lead to irreparable harm. Affirmed. (Anthony Carano, Associate in the Reno office of McDonald Carano Wilson LLP).
Thursday, June 28, 2012
Tri-County Equipment & Leasing v. Klinke, 128 Nev. Adv. Op. 33 (June 28, 2012)
Before the Court En Banc. Opinion by Justice Hardesty.
In this appeal, the Court considered whether the collateral source rule operated to exclude evidence of California workers' compensation payments received by a California employee involved in an accident in Nevada. Reversing and remanding, the Court determined that evidence of the actual amount of workers' compensation benefits paid should have been admitted to the jury pursuant to NRS 616C.215, which permits the admission of such evidence in limited circumstances. Although NRS 616C.215 permits the admission of evidence regarding workers' compensation payments to a jury in certain circumstances provided that a clarifying jury instruction is given, the district court granted a motion in limine finding that the statute did not apply because the respondent received her worker's compensation pursuant to California's workers' compensation scheme and not Nevada's workers’ compensation scheme. Reversing, the Court held that the district court's narrow reading of NRS 616C.215 as applying to only Nevada workers' compensation benefits would defeat the statute's purpose of avoiding confusion to the jury about the payment and nature of workers' compensation benefits in cases in which those benefits have been paid under another state's laws. The Court found no logical reason to treat benefits received pursuant to another state's workers' compensation scheme any differently than benefits received from a Nevada employer. Therefore, in a trial governed by Nevada law, the workers' compensation payments made to an injured employee must be admitted as evidence and the proper instruction regarding the jury's consideration of those payments must be given. Additionally, although the Court specifically ordered briefing to determine whether a reduction in the cost of medical services based on a relationship with an insurance company, a medical “write-down”, was a benefit for which evidence would be barred by the collateral source rule, the majority held that because NRS 616C.215 specifically allows evidence of the benefits actually paid they did not need to address the issue of medical write-downs generally. Justice Gibbons, in a concurring opinion with which Justice Cherry joined, would reach the issue and hold that the collateral source rule bars evidence of medical write-downs. Reversed and Remanded. (Amanda C. Yen, Associate in the Las Vegas office of McDonald Carano Wilson LLP).
In this appeal, the Court considered whether the collateral source rule operated to exclude evidence of California workers' compensation payments received by a California employee involved in an accident in Nevada. Reversing and remanding, the Court determined that evidence of the actual amount of workers' compensation benefits paid should have been admitted to the jury pursuant to NRS 616C.215, which permits the admission of such evidence in limited circumstances. Although NRS 616C.215 permits the admission of evidence regarding workers' compensation payments to a jury in certain circumstances provided that a clarifying jury instruction is given, the district court granted a motion in limine finding that the statute did not apply because the respondent received her worker's compensation pursuant to California's workers' compensation scheme and not Nevada's workers’ compensation scheme. Reversing, the Court held that the district court's narrow reading of NRS 616C.215 as applying to only Nevada workers' compensation benefits would defeat the statute's purpose of avoiding confusion to the jury about the payment and nature of workers' compensation benefits in cases in which those benefits have been paid under another state's laws. The Court found no logical reason to treat benefits received pursuant to another state's workers' compensation scheme any differently than benefits received from a Nevada employer. Therefore, in a trial governed by Nevada law, the workers' compensation payments made to an injured employee must be admitted as evidence and the proper instruction regarding the jury's consideration of those payments must be given. Additionally, although the Court specifically ordered briefing to determine whether a reduction in the cost of medical services based on a relationship with an insurance company, a medical “write-down”, was a benefit for which evidence would be barred by the collateral source rule, the majority held that because NRS 616C.215 specifically allows evidence of the benefits actually paid they did not need to address the issue of medical write-downs generally. Justice Gibbons, in a concurring opinion with which Justice Cherry joined, would reach the issue and hold that the collateral source rule bars evidence of medical write-downs. Reversed and Remanded. (Amanda C. Yen, Associate in the Las Vegas office of McDonald Carano Wilson LLP).
Physicians Insurance Co. v. Williams, 128 Nev. Adv. Op. 30 (June 28, 2012)
Before Justices Cherry, Gibbons, and Pickering. Opinion by Justice Pickering.
In this appeal, the Court interpreted the notice terms of a claims-made-and-reported medical malpractice insurance policy (the “Policy”) to determine whether the insurer, Physicians Insurance Company of Wisconsin, Inc. d.b.a PIC Wisconsin (“PIC”), had timely notice of a claim made against the insured, Dr. Hamid Ahmadi, D.D.S. (“Dr. Ahmadi”), during the policy period. The Policy had a retroactive date of April 13, 1998 and, through renewals, its coverage extended to April 14, 2004. PIC was sued by a patient of Dr. Ahmadi seeking coverage under the Policy after Dr. Ahmadi used cocaine to anesthetize the patient, who then sideswiped a residential gas meter with his work cement truck, failed a drug test, and was fired from his employment. The District Court determined that “constructive” notice of a claim had been provided to PIC based on information that had been provided to PIC “anecdotally,” including through news reports, investigations into claims made on another PIC policy by Dr. Ahmadi relating to an alleged burglary, and an order suspending Dr. Ahmadi’s license. The Court reversed the District Court’s decision holding that the terms of the Policy required that the claim be reported to PIC within the policy period, and that without “actual” notice of the claim pursuant to such provision, there is no coverage for the claim under the Policy. The Court also rejected the interpretation that the Policy’s definition of “Claim” allowed for “constructive” notice of a claim, but rather PIC must be given “specific information about a specific wrongful act and consequent injury to a patient . . . more in the way of formal contact between the insurer and the insured.” Reversed and remanded. (David J. Stoft, Associate in the Las Vegas office of McDonald Carano Wilson.)
In this appeal, the Court interpreted the notice terms of a claims-made-and-reported medical malpractice insurance policy (the “Policy”) to determine whether the insurer, Physicians Insurance Company of Wisconsin, Inc. d.b.a PIC Wisconsin (“PIC”), had timely notice of a claim made against the insured, Dr. Hamid Ahmadi, D.D.S. (“Dr. Ahmadi”), during the policy period. The Policy had a retroactive date of April 13, 1998 and, through renewals, its coverage extended to April 14, 2004. PIC was sued by a patient of Dr. Ahmadi seeking coverage under the Policy after Dr. Ahmadi used cocaine to anesthetize the patient, who then sideswiped a residential gas meter with his work cement truck, failed a drug test, and was fired from his employment. The District Court determined that “constructive” notice of a claim had been provided to PIC based on information that had been provided to PIC “anecdotally,” including through news reports, investigations into claims made on another PIC policy by Dr. Ahmadi relating to an alleged burglary, and an order suspending Dr. Ahmadi’s license. The Court reversed the District Court’s decision holding that the terms of the Policy required that the claim be reported to PIC within the policy period, and that without “actual” notice of the claim pursuant to such provision, there is no coverage for the claim under the Policy. The Court also rejected the interpretation that the Policy’s definition of “Claim” allowed for “constructive” notice of a claim, but rather PIC must be given “specific information about a specific wrongful act and consequent injury to a patient . . . more in the way of formal contact between the insurer and the insured.” Reversed and remanded. (David J. Stoft, Associate in the Las Vegas office of McDonald Carano Wilson.)
Choy v. Ameristar Casinos, Inc., 128 Nev. Adv. Op. 29 (June 28, 2012)
Before the Court En Banc. Opinion by Justice Douglas.
Appellant Paul Choy sought en banc reconsideration of the Court’s earlier opinion in Choy v. Ameristar Casinos, Inc., 127 Nev. Adv. Op. 78 (Nov. 23, 2011), in which the Court held that Choy had failed to substantially comply with NRCP 56(f)’s requirement that a party opposing a motion for summary judgment and seeking a denial or continuance of the motion in order to conduct further discovery must provide an affidavit giving the reasons why the party cannot present “facts essential to justify the party’s opposition.” In denying the petition for reconsideration, the Court confirmed that parties must substantially comply with NRCP 56(f)’s affidavit requirement and specifically disapproved of the holding in Halimi v. Blacketor, 105 Nev. 105, 106, 770 P.2d 531, 531 (1989) to the extent it is inconsistent with the text of NRCP 56(f) and the Court’s holding in Choy. Petition for Reconsideration denied. (Jessica Woelfel, Associate in the Reno office of McDonald Carano Wilson, LLP.)
Appellant Paul Choy sought en banc reconsideration of the Court’s earlier opinion in Choy v. Ameristar Casinos, Inc., 127 Nev. Adv. Op. 78 (Nov. 23, 2011), in which the Court held that Choy had failed to substantially comply with NRCP 56(f)’s requirement that a party opposing a motion for summary judgment and seeking a denial or continuance of the motion in order to conduct further discovery must provide an affidavit giving the reasons why the party cannot present “facts essential to justify the party’s opposition.” In denying the petition for reconsideration, the Court confirmed that parties must substantially comply with NRCP 56(f)’s affidavit requirement and specifically disapproved of the holding in Halimi v. Blacketor, 105 Nev. 105, 106, 770 P.2d 531, 531 (1989) to the extent it is inconsistent with the text of NRCP 56(f) and the Court’s holding in Choy. Petition for Reconsideration denied. (Jessica Woelfel, Associate in the Reno office of McDonald Carano Wilson, LLP.)
Thursday, June 14, 2012
Davis v. Beling, 128 Nev. Adv. Op. 28 (June 14, 2012)
Before Justices Saitta, Hardesty and Parraguirre. Opinion by Justice Saitta.
This action arose from violations of NRS Chapter 645, which governs the duties of real estate professionals in real estate transactions. First addressing an evidentiary issue, the Court held that an offer to settle a dispute is not admissible to prove the failure to mitigate damages because the failure to mitigate goes to the amount of the claim, a use of such evidence specifically barred by NRS 48.105. The Court next concluded that NRS 645.251, which provides that a real estate licensee need not “comply with any principles of common law that may otherwise apply to any of the duties of the licensee as set forth in NRS 645.252, 645.253 and 645.254,” does not bar all common law claims against real estate professionals but prohibits common law claims for conduct governed by those statutes. As such, NRS 645.251 prevents suits against real estate professionals for fraudulent concealment where the duty to disclose is governed by NRS 645.252-645.254. The exclusive remedy for such failures to disclose is a cause of action for breach of the statutory duty. In contrast, a broker may be held liable under common law for an agent’s failure to disclose because supervisory liability is not conduct covered by NRS 645.252-645.254. Next, the Court addressed the proper measure of damages for a breach of the statutory duty to disclose. Based on the language of NRS 645.257, which allows for the recovery of “actual damages,” the Court held that only compensatory and not punitive damages could be recovered for a real estate professional’s breach of a statutory duty. The Court further held that the diminution in value of the property purchased because of the failure to disclose and the carrying costs for maintaining that property were a proper measure of damages. The Court also reiterated that the economic loss doctrine does not bar recovery of purely economic damages for claims involving intentional breaches of duties that arise independent from a contractual duty. Affirmed in part, reversed in part, and remanded for further proceedings. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson LLP.)
This action arose from violations of NRS Chapter 645, which governs the duties of real estate professionals in real estate transactions. First addressing an evidentiary issue, the Court held that an offer to settle a dispute is not admissible to prove the failure to mitigate damages because the failure to mitigate goes to the amount of the claim, a use of such evidence specifically barred by NRS 48.105. The Court next concluded that NRS 645.251, which provides that a real estate licensee need not “comply with any principles of common law that may otherwise apply to any of the duties of the licensee as set forth in NRS 645.252, 645.253 and 645.254,” does not bar all common law claims against real estate professionals but prohibits common law claims for conduct governed by those statutes. As such, NRS 645.251 prevents suits against real estate professionals for fraudulent concealment where the duty to disclose is governed by NRS 645.252-645.254. The exclusive remedy for such failures to disclose is a cause of action for breach of the statutory duty. In contrast, a broker may be held liable under common law for an agent’s failure to disclose because supervisory liability is not conduct covered by NRS 645.252-645.254. Next, the Court addressed the proper measure of damages for a breach of the statutory duty to disclose. Based on the language of NRS 645.257, which allows for the recovery of “actual damages,” the Court held that only compensatory and not punitive damages could be recovered for a real estate professional’s breach of a statutory duty. The Court further held that the diminution in value of the property purchased because of the failure to disclose and the carrying costs for maintaining that property were a proper measure of damages. The Court also reiterated that the economic loss doctrine does not bar recovery of purely economic damages for claims involving intentional breaches of duties that arise independent from a contractual duty. Affirmed in part, reversed in part, and remanded for further proceedings. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson LLP.)
Ryan’s Express v. Amador Stage Lines, 128 Nev. Adv. Op. 27 (June 14, 2012)
Before the Court en banc. Opinion by Justice Douglas.
The underlying appeal in this case involves a district court’s order dismissing all claims of Ryan’s Express Transportation Services, Inc. (“Ryan”) against Amador Stage Lines, Inc. (“Amador”). Upon appeal, the case was assigned to the Court’s settlement program. The settlement conference was unsuccessful. Subsequently, counsel for Amador (Ellen Jean Winograd) joined the law firm of Woodburn and Wedge. Woodburn and Wedge is the same law firm that the settlement conference judge (Nicholas Frey) works for. As a result, Ryan’s counsel filed a Motion to Disqualify Amador’s counsel. In ruling on the Motion to Disqualify, the issue before the Nevada Supreme Court is whether screening is appropriate with regard to a settlement judge acting under the Court’s settlement conference program or how to determine the sufficiency of any screening measures utilized. The parties agreed that Frey is disqualified because, as the settlement judge, he “participated personally and substantially” as a third-party neutral and informed consent in writing was not obtained as required by Nevada’s Rules of Professional Conduct (“RPC”) 1.12(a). As a result, the Woodburn and Wedge law firm is disqualified unless it can demonstrate that Frey was timely and adequately screened off pursuant to RPC 1.12(c). The Court held that screening of lawyers, under the applicable rules of professional conduct, may be used to rebut the presumption of shared confidences. The Court also adopted an approach requiring Nevada’s courts to conduct an evidentiary hearing to determine the adequacy and timeliness of the screening measures on a case-by-case basis. The burden of proof is upon the party seeking to cure an imputed disqualification with screening to demonstrate that the use of screening is appropriate for the situation and that the disqualified attorney is timely and properly screened. The factors considered are: (1) instructions given to ban the exchange of information between the disqualified attorney and other members of the firm; (2) restricted access to files and other information about the case; (3) the size of the law firm and its structural divisions; (4) the likelihood of contact between the quarantined lawyer and other members of the firm; and (5) the time of screening. Because an evidentiary hearing has not been conducted in this matter, the matter was remanded to the district court. The Court further indicated that while no rule or statute specifically authorizes it to remand a matter for additional fact-finding, that such power for remand comes from the inherent power of the courts. Remanded for additional fact-finding. (Lisa M. Wiltshire, Associate in the Reno office of McDonald Carano Wilson.)
The underlying appeal in this case involves a district court’s order dismissing all claims of Ryan’s Express Transportation Services, Inc. (“Ryan”) against Amador Stage Lines, Inc. (“Amador”). Upon appeal, the case was assigned to the Court’s settlement program. The settlement conference was unsuccessful. Subsequently, counsel for Amador (Ellen Jean Winograd) joined the law firm of Woodburn and Wedge. Woodburn and Wedge is the same law firm that the settlement conference judge (Nicholas Frey) works for. As a result, Ryan’s counsel filed a Motion to Disqualify Amador’s counsel. In ruling on the Motion to Disqualify, the issue before the Nevada Supreme Court is whether screening is appropriate with regard to a settlement judge acting under the Court’s settlement conference program or how to determine the sufficiency of any screening measures utilized. The parties agreed that Frey is disqualified because, as the settlement judge, he “participated personally and substantially” as a third-party neutral and informed consent in writing was not obtained as required by Nevada’s Rules of Professional Conduct (“RPC”) 1.12(a). As a result, the Woodburn and Wedge law firm is disqualified unless it can demonstrate that Frey was timely and adequately screened off pursuant to RPC 1.12(c). The Court held that screening of lawyers, under the applicable rules of professional conduct, may be used to rebut the presumption of shared confidences. The Court also adopted an approach requiring Nevada’s courts to conduct an evidentiary hearing to determine the adequacy and timeliness of the screening measures on a case-by-case basis. The burden of proof is upon the party seeking to cure an imputed disqualification with screening to demonstrate that the use of screening is appropriate for the situation and that the disqualified attorney is timely and properly screened. The factors considered are: (1) instructions given to ban the exchange of information between the disqualified attorney and other members of the firm; (2) restricted access to files and other information about the case; (3) the size of the law firm and its structural divisions; (4) the likelihood of contact between the quarantined lawyer and other members of the firm; and (5) the time of screening. Because an evidentiary hearing has not been conducted in this matter, the matter was remanded to the district court. The Court further indicated that while no rule or statute specifically authorizes it to remand a matter for additional fact-finding, that such power for remand comes from the inherent power of the courts. Remanded for additional fact-finding. (Lisa M. Wiltshire, Associate in the Reno office of McDonald Carano Wilson.)
FGA Inc., v. Giglio, 128 Nev. Adv. Op. 26 (June 14, 2012)
Before Justices Douglas, Hardesty and Parraguirre. Opinion by Justice Douglas.
In this appeal from a jury verdict in a tort action, the Court considered whether the “mode of operation” approach to premises liability, under which the plaintiff does not have to prove the defendant’s knowledge of a particular hazardous condition if the plaintiff can prove that the nature of the defendant’s business tends to create a substantial risk of the type of harm the plaintiff suffered, extends beyond the self-service context. In answering the question in the negative, the Court held that because the mode of operation approach is premised on the idea that business owners should be held responsible for the risks that their choice to have customers serve themselves creates, the mode of operation approach does not extend to “sit-down” restaurants. The Court found no reason to extend mode of operation liability to such sit-down restaurants absent a showing that their owners created an increased risk of a potentially hazardous condition by having their customers perform tasks that are traditionally carried out by employees. Additionally, the Court addressed issues regarding the general verdict rule and rulings on the admissibility of evidence of pre-existing conditions, alcohol consumption, and testimony to correct erroneous statements. Of particular importance, the Court held that the general verdict rule (which provides that if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party) does not apply when there are multiple factual theories supporting a single legal theory of recovery. As a result, the appellant in this case was able to obtain reversal of the judgment on the jury verdict based on errors that affected only the mode of operation basis for the finding of negligence, despite evidence in the record from which a jury could have concluded that an employee of the restaurant was directly responsible for the spilled substance. Reversed and remanded. (Anthony L. Carano, Associate in the Reno office of McDonald Carano Wilson LLP.)
In this appeal from a jury verdict in a tort action, the Court considered whether the “mode of operation” approach to premises liability, under which the plaintiff does not have to prove the defendant’s knowledge of a particular hazardous condition if the plaintiff can prove that the nature of the defendant’s business tends to create a substantial risk of the type of harm the plaintiff suffered, extends beyond the self-service context. In answering the question in the negative, the Court held that because the mode of operation approach is premised on the idea that business owners should be held responsible for the risks that their choice to have customers serve themselves creates, the mode of operation approach does not extend to “sit-down” restaurants. The Court found no reason to extend mode of operation liability to such sit-down restaurants absent a showing that their owners created an increased risk of a potentially hazardous condition by having their customers perform tasks that are traditionally carried out by employees. Additionally, the Court addressed issues regarding the general verdict rule and rulings on the admissibility of evidence of pre-existing conditions, alcohol consumption, and testimony to correct erroneous statements. Of particular importance, the Court held that the general verdict rule (which provides that if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party) does not apply when there are multiple factual theories supporting a single legal theory of recovery. As a result, the appellant in this case was able to obtain reversal of the judgment on the jury verdict based on errors that affected only the mode of operation basis for the finding of negligence, despite evidence in the record from which a jury could have concluded that an employee of the restaurant was directly responsible for the spilled substance. Reversed and remanded. (Anthony L. Carano, Associate in the Reno office of McDonald Carano Wilson LLP.)
Thursday, May 31, 2012
Pack v. LaTourette, 128 Nev. Adv. Op. 25 (May 31, 2012)
Before Justices Douglas, Gibbons, and Parraguirre. Opinion by Justice Parraguirre.
In an action for personal injury against a taxi company, discovery revealed that medical malpractice may have aggravated the injuries. As such the taxi company filed a third-party complaint against the doctor, claiming equitable indemnity and contribution. The district court dismissed the complaint and the taxi company appealed. On appeal, the Court addressed the requirements for equitable indemnity and contribution, in general, and a contribution claim based on medical practice, in particular. The Court restated that one requirement for equitable indemnity is that the two tortfeasors have a pre-existing legal relationship or duty and affirmed the district court’s dismissal of the equitable indemnity claim. However, the Court made clear that a claim for contribution against a joint tortfeasor is permissible under NRCP 14(a) even if the complaining party has not yet made a payment of damages. Finally, the Court held that a claim for contribution based on medical malpractice must comply with the statutory requirement that a complaint for medical malpractice be supported by an expert affidavit. As such, the Court reversed the district court’s dismissal with prejudice and remanded with instructions to dismiss the action without prejudice. Affirmed in part, reversed in part, and remanded. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
In an action for personal injury against a taxi company, discovery revealed that medical malpractice may have aggravated the injuries. As such the taxi company filed a third-party complaint against the doctor, claiming equitable indemnity and contribution. The district court dismissed the complaint and the taxi company appealed. On appeal, the Court addressed the requirements for equitable indemnity and contribution, in general, and a contribution claim based on medical practice, in particular. The Court restated that one requirement for equitable indemnity is that the two tortfeasors have a pre-existing legal relationship or duty and affirmed the district court’s dismissal of the equitable indemnity claim. However, the Court made clear that a claim for contribution against a joint tortfeasor is permissible under NRCP 14(a) even if the complaining party has not yet made a payment of damages. Finally, the Court held that a claim for contribution based on medical malpractice must comply with the statutory requirement that a complaint for medical malpractice be supported by an expert affidavit. As such, the Court reversed the district court’s dismissal with prejudice and remanded with instructions to dismiss the action without prejudice. Affirmed in part, reversed in part, and remanded. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
In re State Engineer Ruling No. 5823, 128 Nev. Adv. Op. 22 (May 31, 2012)
Before the Court En Banc. Opinion by Justice Pickering.
In this appeal from the district court’s order dismissing a petition for judicial review of the State Engineer’s ruling in a water rights action, the Court considered whether the district court properly interpreted NRS 533.450(1) when it dismissed the petition for lack of subject matter jurisdiction. NRS 533.450(1) affords judicial review “in the nature of an appeal” to “[a]ny person feeling aggrieved by any order or decision of the State [Water] Engineer . . . affecting the person’s interests.” The appeal “must be initiated in the proper court of the county in which the matters affected or a portion thereof are situated.” Id. In this case, the Court considered what the statute means by “matters affected.” This matter arose when the State Engineer approved two new groundwater appropriations in a basin that lies wholly in Lyon County, and Appellants filed an appeal in neighboring Churchill County, where they have an interest that they argued would be depleted based on the new appropriations. The district court held that the appeal must be filed in Lyon County based on its interpretation of the statute. The Nevada Supreme Court interpreted the statute as contemplating more than one possible venue, and explained that using the phrase “matters affected,” refers not just to an applicant’s interests but to a protester’s as well. Thus, the Court held that the district courts in either Churchill County or Lyon County may be proper venues for the appeals under NRS 533.450. Reversed and remanded. (Brent Keele, Associate in the Reno office of McDonald Carano Wilson.)
In this appeal from the district court’s order dismissing a petition for judicial review of the State Engineer’s ruling in a water rights action, the Court considered whether the district court properly interpreted NRS 533.450(1) when it dismissed the petition for lack of subject matter jurisdiction. NRS 533.450(1) affords judicial review “in the nature of an appeal” to “[a]ny person feeling aggrieved by any order or decision of the State [Water] Engineer . . . affecting the person’s interests.” The appeal “must be initiated in the proper court of the county in which the matters affected or a portion thereof are situated.” Id. In this case, the Court considered what the statute means by “matters affected.” This matter arose when the State Engineer approved two new groundwater appropriations in a basin that lies wholly in Lyon County, and Appellants filed an appeal in neighboring Churchill County, where they have an interest that they argued would be depleted based on the new appropriations. The district court held that the appeal must be filed in Lyon County based on its interpretation of the statute. The Nevada Supreme Court interpreted the statute as contemplating more than one possible venue, and explained that using the phrase “matters affected,” refers not just to an applicant’s interests but to a protester’s as well. Thus, the Court held that the district courts in either Churchill County or Lyon County may be proper venues for the appeals under NRS 533.450. Reversed and remanded. (Brent Keele, Associate in the Reno office of McDonald Carano Wilson.)
Winn v. Sunrise Hospital & Medical Center, 128 Nev. Adv. Op. 23 (May 31, 2012)
Before the Court En Banc. Opinion by Justice Parraguirre.
In this appeal of an order granting summary judgment, the Nevada Supreme Court addressed three issues related to the medical malpractice statute of limitations contained in NRS 41A.097. The statute of limitations states that an action for medical malpractice must be commenced within three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs earlier. First, the Court ruled that the date on which the one-year discovery period begins to run is ordinarily a question of fact to be decided by the jury. However, the date may be determined as a matter of law when the evidence irrefutably demonstrates that a plaintiff had facts before him that would have led an ordinarily prudent person to investigate further into whether an injury may have been caused by someone’s negligence. Second, the Court determined that the statute of limitations tolls when a defendant intentionally withholds information that was material, meaning the information would have hindered a reasonably diligent plaintiff from timely filing suit. Third, one defendant’s concealment cannot serve as a basis for tolling the limitations period as to defendants who played no role in the concealment. In this case, factual issues remained related to whether the limitations period should have been tolled as a result of a hospital’s failure to produce records. Regardless, the Court refused to impute that failure to the individual doctors because they were not involved in the request for such records. Affirmed in part, vacated in part, and remanded. (Joseph P. Schrage, Associate in the Las Vegas office of McDonald Carano Wilson.)
In this appeal of an order granting summary judgment, the Nevada Supreme Court addressed three issues related to the medical malpractice statute of limitations contained in NRS 41A.097. The statute of limitations states that an action for medical malpractice must be commenced within three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs earlier. First, the Court ruled that the date on which the one-year discovery period begins to run is ordinarily a question of fact to be decided by the jury. However, the date may be determined as a matter of law when the evidence irrefutably demonstrates that a plaintiff had facts before him that would have led an ordinarily prudent person to investigate further into whether an injury may have been caused by someone’s negligence. Second, the Court determined that the statute of limitations tolls when a defendant intentionally withholds information that was material, meaning the information would have hindered a reasonably diligent plaintiff from timely filing suit. Third, one defendant’s concealment cannot serve as a basis for tolling the limitations period as to defendants who played no role in the concealment. In this case, factual issues remained related to whether the limitations period should have been tolled as a result of a hospital’s failure to produce records. Regardless, the Court refused to impute that failure to the individual doctors because they were not involved in the request for such records. Affirmed in part, vacated in part, and remanded. (Joseph P. Schrage, Associate in the Las Vegas office of McDonald Carano Wilson.)
Thursday, May 17, 2012
Club Vista Financial Servs. v. Dist. Ct., 128 Nev. Adv. Op. 21 (May 17, 2012)
Before the Court En Banc (Justice Parraguirre recused). Opinion by Chief Justice Cherry.
In this petition for writ of mandamus or prohibition, the Court considered whether, and under what circumstances, a party to a lawsuit may depose an opposing party’s former attorney. The Court discussed the inherent policy concerns surrounding the deposition of a party’s attorney and noted that many jurisdictions disfavor the practice of taking the deposition of a party’s attorney. As such, because of the potential to create an undue burden, the Court concluded that such depositions should only be permitted in “exceptionally limited circumstances.” Therefore, the Court adopted a stringent framework established by the Eighth Circuit in Shelton v. American Motors Corp., 805 F. 2d 1323 (8th Cir. 1986) rather than a flexible standard as proposed by the real parties in interest. The Court held that a party seeking to depose opposing counsel has the burden of proving that: (1) no other means exist to obtain the information than to depose opposing counsel; (2) the information is relevant and nonprivileged; (3) and the information is crucial to the preparation of the case. The Court also indicated that the district court should consider whether the attorney is a percipient witness to the facts giving rise to the complaint. In light of these considerations, the Court directed the district court to consider whether the deposition would be permissible when analyzed under the Shelton framework. Petition granted in part. (Amanda M. Perach, Associate in the Las Vegas office of McDonald Carano Wilson.)
In this petition for writ of mandamus or prohibition, the Court considered whether, and under what circumstances, a party to a lawsuit may depose an opposing party’s former attorney. The Court discussed the inherent policy concerns surrounding the deposition of a party’s attorney and noted that many jurisdictions disfavor the practice of taking the deposition of a party’s attorney. As such, because of the potential to create an undue burden, the Court concluded that such depositions should only be permitted in “exceptionally limited circumstances.” Therefore, the Court adopted a stringent framework established by the Eighth Circuit in Shelton v. American Motors Corp., 805 F. 2d 1323 (8th Cir. 1986) rather than a flexible standard as proposed by the real parties in interest. The Court held that a party seeking to depose opposing counsel has the burden of proving that: (1) no other means exist to obtain the information than to depose opposing counsel; (2) the information is relevant and nonprivileged; (3) and the information is crucial to the preparation of the case. The Court also indicated that the district court should consider whether the attorney is a percipient witness to the facts giving rise to the complaint. In light of these considerations, the Court directed the district court to consider whether the deposition would be permissible when analyzed under the Shelton framework. Petition granted in part. (Amanda M. Perach, Associate in the Las Vegas office of McDonald Carano Wilson.)
Thursday, May 3, 2012
Schettler v. Ralron Capital Corp., 128 Nev. Adv. Op. 20 (May 3, 2012)
Before Justices Douglas, Hardesty and Parraguirre. Opinion by Justice Hardesty.
In an appeal from a district court’s grant of summary judgment against a borrower who allegedly defaulted on a commercial loan, the Court considered whether the borrower’s failure to follow the administrative claims process set forth in the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA), 12 U.S.C. § 1821, barred the borrower from asserting defenses or affirmative defenses to a complaint filed by an entity (the Successor Bank) that obtained the right to enforce the loan documents after the lender was placed into receivership by the FDIC. After reviewing FIRREA’s purpose and requirements, the Court rejected the borrower’s argument that FIRREA did not apply since the FDIC failed to mail the required notice because the borrower’s due process rights to notice were satisfied by the type of notice he received. The Court also rejected the borrower’s argument that FIRREA did not apply since the district court proceedings involved the Successor Bank rather than the FDIC based on authority from several federal courts stating that a successor to a failed bank is entitled to benefit from FIRREA’s jurisdictional bar with respect to claims related to acts or omissions of the failed bank. Finally, the Court analyzed whether FIRREA’s claims process applied to defenses or affirmative defenses. In answering that question in the negative, the Court examined judicial decisions from other jurisdictions that held, among other things, that (1) FIRREA makes no mention of defenses, affirmative defenses, or potential affirmative defenses, which are not claims, but responses to claims; (2) barring a party from presenting defenses and affirmative defenses in response to a collections complaint would unconstitutionally deprive that party of the opportunity to be heard; and (3) because a party is unable to know what claims, if any, might be brought against it in the future, it would be impossible for that party to submit hypothetical defenses to such claims to FIRREA’s administrative claims procedure. For those reasons, the district court erred by failing to consider the borrower’s affirmative defenses to the Successor Bank’s claims. Reversed and remanded. (Patrick J. Murch, Associate in the Las Vegas office of McDonald Carano Wilson LLP).
In an appeal from a district court’s grant of summary judgment against a borrower who allegedly defaulted on a commercial loan, the Court considered whether the borrower’s failure to follow the administrative claims process set forth in the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA), 12 U.S.C. § 1821, barred the borrower from asserting defenses or affirmative defenses to a complaint filed by an entity (the Successor Bank) that obtained the right to enforce the loan documents after the lender was placed into receivership by the FDIC. After reviewing FIRREA’s purpose and requirements, the Court rejected the borrower’s argument that FIRREA did not apply since the FDIC failed to mail the required notice because the borrower’s due process rights to notice were satisfied by the type of notice he received. The Court also rejected the borrower’s argument that FIRREA did not apply since the district court proceedings involved the Successor Bank rather than the FDIC based on authority from several federal courts stating that a successor to a failed bank is entitled to benefit from FIRREA’s jurisdictional bar with respect to claims related to acts or omissions of the failed bank. Finally, the Court analyzed whether FIRREA’s claims process applied to defenses or affirmative defenses. In answering that question in the negative, the Court examined judicial decisions from other jurisdictions that held, among other things, that (1) FIRREA makes no mention of defenses, affirmative defenses, or potential affirmative defenses, which are not claims, but responses to claims; (2) barring a party from presenting defenses and affirmative defenses in response to a collections complaint would unconstitutionally deprive that party of the opportunity to be heard; and (3) because a party is unable to know what claims, if any, might be brought against it in the future, it would be impossible for that party to submit hypothetical defenses to such claims to FIRREA’s administrative claims procedure. For those reasons, the district court erred by failing to consider the borrower’s affirmative defenses to the Successor Bank’s claims. Reversed and remanded. (Patrick J. Murch, Associate in the Las Vegas office of McDonald Carano Wilson LLP).
Thursday, April 26, 2012
Jones v. Suntrust Mortgage Inc., 128 Nev. Adv. Op. 18 (April 26, 2012)
Before the Court en banc. Opinion by Justice Gibbons.
In this appeal from a district court order denying judicial review of a foreclosure mediation matter, the Court resolved the issue of whether a signed agreement resulting from Nevada’s Foreclosure Mediation Program (FMP) is an enforceable settlement agreement. In answering the question in the affirmative, the Court held that when the agreement is reached during the FMP, the document is signed by both parties, and the document otherwise comports with contract principles, the agreement is enforceable under District Court Rule 16. After participating in the FMP, the Appellant and Respondent entered into a settlement agreement calling for the short sale of the property at issue in exchange for a temporary suspension of Respondent’s foreclosure efforts. The Appellant contended that the agreement was not supported by consideration, and the Court rejected this view, instead holding that the Respondent’s agreement to temporarily suspend foreclosure proceedings was adequate consideration given in exchange for the Appellant’s promise to complete a short sale of the property within two months of the execution of the agreement. The Court further rejected the Appellant’s argument that the Respondent’s subsequent foreclosure of the property after failed short sale efforts violated the Foreclosure Mortgage Rules (FMR). Because the settlement agreement was enforceable and consistent with District Court Rule 16 as well as the FMR, the Respondent was entitled to foreclosure on the property after the Appellant failed to short sell it within the two-month period. Affirmed. (Rory T. Kay, Associate in the Las Vegas office of McDonald Carano Wilson LLP)
In this appeal from a district court order denying judicial review of a foreclosure mediation matter, the Court resolved the issue of whether a signed agreement resulting from Nevada’s Foreclosure Mediation Program (FMP) is an enforceable settlement agreement. In answering the question in the affirmative, the Court held that when the agreement is reached during the FMP, the document is signed by both parties, and the document otherwise comports with contract principles, the agreement is enforceable under District Court Rule 16. After participating in the FMP, the Appellant and Respondent entered into a settlement agreement calling for the short sale of the property at issue in exchange for a temporary suspension of Respondent’s foreclosure efforts. The Appellant contended that the agreement was not supported by consideration, and the Court rejected this view, instead holding that the Respondent’s agreement to temporarily suspend foreclosure proceedings was adequate consideration given in exchange for the Appellant’s promise to complete a short sale of the property within two months of the execution of the agreement. The Court further rejected the Appellant’s argument that the Respondent’s subsequent foreclosure of the property after failed short sale efforts violated the Foreclosure Mortgage Rules (FMR). Because the settlement agreement was enforceable and consistent with District Court Rule 16 as well as the FMR, the Respondent was entitled to foreclosure on the property after the Appellant failed to short sell it within the two-month period. Affirmed. (Rory T. Kay, Associate in the Las Vegas office of McDonald Carano Wilson LLP)
Thursday, April 5, 2012
MountainView Hospital v. Dist. Ct., 128 Nev. Adv. Op. 17 (April 5, 2012)
Before Justices Douglas, Hardesty and Parraguirre. Opinion by Justice Hardesty.
In this petition for writ relief, the Court considered whether NRS 41A.071’s medical expert affidavit requirement without a properly executed jurat (evidence that the person making the statement did so under oath before the appropriate officer). NRS 41A.071 requires medical experts to supply an affidavit in a medical malpractice action, which is satisfied by either (1) a sworn statement before a proper officer that usually includes a jurat, or (2) an unsworn declaration made under penalty of perjury. Applying similar analyses from other jurisdictions, the Court concluded that a party can overcome a missing or defective jurat by providing other, outside evidence to demonstrate that the expert made the statement under oath or that the expert made an unsworn statement under penalty of perjury. In this case, the plaintiff’s medical expert made a statement, acknowledged by a notary, supporting the medical malpractice claim but lacking a jurat or other affirmation regarding the truth of the statement. In the writ proceedings, the plaintiff submitted a declaration from the expert stating that he swore to the statement under oath, but this evidence had not been presented to the district court. Accordingly, the Court granted the Petitioner’s requested relief in part and instructed the district court to conduct an evidentiary hearing to determine whether the plaintiff could present sufficient evidence to prove that the medical expert made his statement under oath in compliance with NRS 41A.071. Petition granted in part. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson).
In this petition for writ relief, the Court considered whether NRS 41A.071’s medical expert affidavit requirement without a properly executed jurat (evidence that the person making the statement did so under oath before the appropriate officer). NRS 41A.071 requires medical experts to supply an affidavit in a medical malpractice action, which is satisfied by either (1) a sworn statement before a proper officer that usually includes a jurat, or (2) an unsworn declaration made under penalty of perjury. Applying similar analyses from other jurisdictions, the Court concluded that a party can overcome a missing or defective jurat by providing other, outside evidence to demonstrate that the expert made the statement under oath or that the expert made an unsworn statement under penalty of perjury. In this case, the plaintiff’s medical expert made a statement, acknowledged by a notary, supporting the medical malpractice claim but lacking a jurat or other affirmation regarding the truth of the statement. In the writ proceedings, the plaintiff submitted a declaration from the expert stating that he swore to the statement under oath, but this evidence had not been presented to the district court. Accordingly, the Court granted the Petitioner’s requested relief in part and instructed the district court to conduct an evidentiary hearing to determine whether the plaintiff could present sufficient evidence to prove that the medical expert made his statement under oath in compliance with NRS 41A.071. Petition granted in part. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson).
In re Parental Rights as to C.C.A., 128 Nev. Adv. Op. 15 (April 5, 2012)
Before Justices Douglas, Hardesty and Parraguirre. Opinion by Justice Douglas.
In this appeal from a judgment terminating parental rights, the Court reversed and remanded the district court’s decision terminating parental rights because the district court failed to state any factual or legal basis for the termination. The order, submitted by the state, recited the statutory bases for terminating parental rights but did not recite any facts from the two-day bench trial or apply the law to those facts. Citing the high standard of proof for termination proceedings and NRCP 52(a), which requires district courts to separately state its findings of fact and conclusions of law in a judgment on a bench trial, the Court held that it could not review the decision because neither the written order nor the record of oral proceedings contained factual findings. Reversed and remanded. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson LLP).
In this appeal from a judgment terminating parental rights, the Court reversed and remanded the district court’s decision terminating parental rights because the district court failed to state any factual or legal basis for the termination. The order, submitted by the state, recited the statutory bases for terminating parental rights but did not recite any facts from the two-day bench trial or apply the law to those facts. Citing the high standard of proof for termination proceedings and NRCP 52(a), which requires district courts to separately state its findings of fact and conclusions of law in a judgment on a bench trial, the Court held that it could not review the decision because neither the written order nor the record of oral proceedings contained factual findings. Reversed and remanded. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson LLP).
Holiday Retirement Corp. v. State, DIR, 128 Nev. Adv. Op. 13 (April 5, 2012)
Before Justices Douglas, Hardesty, and Parraguirre. Opinion by Justice Douglas.
In an appeal from a district court order denying a petition for judicial review in a worker’s compensation action, the Court considered whether an employer is required to acquire knowledge of any employee’s permanent physical impairment before a subsequent injury in order to qualify for reimbursement from the subsequent injury account for private carriers under NRS 616B.587(4). NRS 616B.587 provides for reimbursement when an employee sustains an injury entitling him or her to compensation for disability that is substantially greater due to the combined effects of a preexisting impairment and the subsequent injury than that which would have resulted from the subsequent injury alone, provided certain conditions are met. The condition at issue in this case was whether the insurer could establish by written records that the Appellant/employer had knowledge of the permanent physical impairment at the time the employee was hired, or that the employee was retained in that employment after learning of the of the impairment. Appellant/employer hired an employee who had a workplace injury in 2003. It was later determined that the employee had a previous permanent physical impairment that occurred more than a decade earlier. DIR denied the request for reimbursement because Appellant did not learn of the earlier injury until after the day after the 2003 injury, and there was no indication that it provided a permanent modified duty or permanent full duty position to the employee. An appeals officer affirmed DIR’s denial on an alternative basis. Ultimately, the Court determined that the language of NRS 616B.587(4) was plain and unambiguous, and consistent with the majority in other jurisdictions having a knowledge requirement, held that an employer must acquire knowledge of an employee's permanent physical impairment before the subsequent injury occurs to qualify for reimbursement from the subsequent injury account for private carriers under NRS 616B.587(4). The Court affirmed the district court’s order denying a petition for judicial review. (Kristen T. Gallagher, Associate in the Las Vegas office of McDonald Carano Wilson).
In an appeal from a district court order denying a petition for judicial review in a worker’s compensation action, the Court considered whether an employer is required to acquire knowledge of any employee’s permanent physical impairment before a subsequent injury in order to qualify for reimbursement from the subsequent injury account for private carriers under NRS 616B.587(4). NRS 616B.587 provides for reimbursement when an employee sustains an injury entitling him or her to compensation for disability that is substantially greater due to the combined effects of a preexisting impairment and the subsequent injury than that which would have resulted from the subsequent injury alone, provided certain conditions are met. The condition at issue in this case was whether the insurer could establish by written records that the Appellant/employer had knowledge of the permanent physical impairment at the time the employee was hired, or that the employee was retained in that employment after learning of the of the impairment. Appellant/employer hired an employee who had a workplace injury in 2003. It was later determined that the employee had a previous permanent physical impairment that occurred more than a decade earlier. DIR denied the request for reimbursement because Appellant did not learn of the earlier injury until after the day after the 2003 injury, and there was no indication that it provided a permanent modified duty or permanent full duty position to the employee. An appeals officer affirmed DIR’s denial on an alternative basis. Ultimately, the Court determined that the language of NRS 616B.587(4) was plain and unambiguous, and consistent with the majority in other jurisdictions having a knowledge requirement, held that an employer must acquire knowledge of an employee's permanent physical impairment before the subsequent injury occurs to qualify for reimbursement from the subsequent injury account for private carriers under NRS 616B.587(4). The Court affirmed the district court’s order denying a petition for judicial review. (Kristen T. Gallagher, Associate in the Las Vegas office of McDonald Carano Wilson).
Haley v. Eighth Judicial District Court, 128 Nev. Adv. Op. 16 (Apr. 5, 2012)
Before Justices Douglas, Hardesty and Parraguirre. Opinion by Justice Parraguirre.
In this petition for writ of mandamus, the Court addresses the scope of a district court’s authority to unilaterally modify a settlement agreement under NRS 41.200, Nevada’s statute governing the compromise of a minor child’s claim. The Court reviewed the history of the case, in which a child ward of the state’s claim against a health care provider was brought by Petitioners (her attorney and her guardian ad litem) on her behalf. The parties reached a settlement and submitted it to the district court for approval. The district court denied the compromise because the amounts awarded to the Petitioners exceeded the amount payable to the minor. Petitioners again moved for approval of the compromise, this time with supporting documentation. The district court approved the overall amount of the settlement but changed the allotted amounts payable to Petitioners and the minor, respectively. Petitioners’ writ of mandamus challenges the district court’s authority to alter the distribution unilaterally. The Supreme Court denied this part of the writ petition. The Court looked to NRS 41.200(1), which provides that a compromise made on a minor’s behalf is not effective until approved by a district court. The Court broadly construed the authority granted by this section to encompass a review of the apportionment of proceeds, including the amount for attorney’s fees and costs. As support for its position, the Court noted that other subsections of NRS 41.200 provide that a petition must include the proposed allocation of fees and expenses, and that therefore such aspects of the compromise are within a district court’s discretion when it conducts its review under 41.200(1). The Court also noted that its result is consistent with NRCP 17(c), which allows a district court to issue any “order as it deems proper for the protection” of a minor. The Court cited federal case law interpreting NRCP 17’s federal analog, FRCP 17, to give courts authority to evaluate whether the net recovery of a minor is fair and reasonable. Finally, the Court granted in part the writ petition because the district court’s reallocation of funds was unclear as between the attorney and the guardian. The Court instructed the district court to provide a distribution (with an explanation) of the allocated amount as between the attorney and the guardian. Denied in part, granted in part, and remanded. (Mark W. Dunagan, Associate in the Reno office of McDonald Carano Wilson LLP).
In this petition for writ of mandamus, the Court addresses the scope of a district court’s authority to unilaterally modify a settlement agreement under NRS 41.200, Nevada’s statute governing the compromise of a minor child’s claim. The Court reviewed the history of the case, in which a child ward of the state’s claim against a health care provider was brought by Petitioners (her attorney and her guardian ad litem) on her behalf. The parties reached a settlement and submitted it to the district court for approval. The district court denied the compromise because the amounts awarded to the Petitioners exceeded the amount payable to the minor. Petitioners again moved for approval of the compromise, this time with supporting documentation. The district court approved the overall amount of the settlement but changed the allotted amounts payable to Petitioners and the minor, respectively. Petitioners’ writ of mandamus challenges the district court’s authority to alter the distribution unilaterally. The Supreme Court denied this part of the writ petition. The Court looked to NRS 41.200(1), which provides that a compromise made on a minor’s behalf is not effective until approved by a district court. The Court broadly construed the authority granted by this section to encompass a review of the apportionment of proceeds, including the amount for attorney’s fees and costs. As support for its position, the Court noted that other subsections of NRS 41.200 provide that a petition must include the proposed allocation of fees and expenses, and that therefore such aspects of the compromise are within a district court’s discretion when it conducts its review under 41.200(1). The Court also noted that its result is consistent with NRCP 17(c), which allows a district court to issue any “order as it deems proper for the protection” of a minor. The Court cited federal case law interpreting NRCP 17’s federal analog, FRCP 17, to give courts authority to evaluate whether the net recovery of a minor is fair and reasonable. Finally, the Court granted in part the writ petition because the district court’s reallocation of funds was unclear as between the attorney and the guardian. The Court instructed the district court to provide a distribution (with an explanation) of the allocated amount as between the attorney and the guardian. Denied in part, granted in part, and remanded. (Mark W. Dunagan, Associate in the Reno office of McDonald Carano Wilson LLP).
Thursday, March 1, 2012
Wheble v. Eighth Judicial District Court, 128 Nev. Adv. Op. 11 (March 1, 2012)
Before Justices Douglas, Hardesty and Paraguirre. Per Curiam.
In this petition for writ of mandamus, the Court addresses the issue of whether NRS 11.500 (Nevada’s “savings statute”) can apply to save otherwise time-barred medical malpractice claims that have been previously dismissed for failure to comply with the affidavit requirements of NRS 41A.071. The Court reviews the history of the case, in which the original complaint, filed before the expiration of the statute of limitations, was filed without attaching the expert affidavit required under NRS 41A.071. The plaintiffs subsequently submitted an errata to the complaint attaching the expert affidavit. After a first round of writ practice before the Nevada Supreme Court, the district court dismissed the plaintiffs’ medical malpractice claims without prejudice due to the failure to attach the expert affidavit. See Saxena v. District Court, Docket 54775 (Order Granting in Part Petition for Writ of Mandamus, January 8, 2010). After the dismissal, the plaintiffs filed a new complaint on January 21, 2010, reasserting the dismissed medical malpractice claims. Some defendants filed a motion to dismiss, arguing that the statute of limitations had passed before plaintiffs filed the complaint with the appropriate affidavit. The district court denied the motion, and a subsequent motion for summary judgment, holding that the savings statute at NRS 11.500 allowed plaintiffs an additional 90 days after dismissal of the original action to re-file their claims. NRS 11.500 specifically provides that if an action “that is commenced within the applicable period of limitations is dismissed” for lack of subject matter jurisdiction, the action may be recommenced within the later of: (1) the applicable period of limitations, or (2) 90 days after the action is dismissed. The Nevada Supreme Court granted defendants’ writ petition, holding that the original action was never “commenced” because a failure to comply with the affidavit requirement of NRS 41A.071 renders a complaint void ab initio and means that the complaint never legally existed. Thus, the Court held that because the previously dismissed action was never actually “commenced,” NRS 11.500 does not apply. The Court then directed the district court to dismiss plaintiffs’ medical malpractice claims from the January 21, 2010 complaint because the statute of limitations for those claims had expired. (Megan Starich, Associate in the Reno office of McDonald Carano Wilson LLP).
In this petition for writ of mandamus, the Court addresses the issue of whether NRS 11.500 (Nevada’s “savings statute”) can apply to save otherwise time-barred medical malpractice claims that have been previously dismissed for failure to comply with the affidavit requirements of NRS 41A.071. The Court reviews the history of the case, in which the original complaint, filed before the expiration of the statute of limitations, was filed without attaching the expert affidavit required under NRS 41A.071. The plaintiffs subsequently submitted an errata to the complaint attaching the expert affidavit. After a first round of writ practice before the Nevada Supreme Court, the district court dismissed the plaintiffs’ medical malpractice claims without prejudice due to the failure to attach the expert affidavit. See Saxena v. District Court, Docket 54775 (Order Granting in Part Petition for Writ of Mandamus, January 8, 2010). After the dismissal, the plaintiffs filed a new complaint on January 21, 2010, reasserting the dismissed medical malpractice claims. Some defendants filed a motion to dismiss, arguing that the statute of limitations had passed before plaintiffs filed the complaint with the appropriate affidavit. The district court denied the motion, and a subsequent motion for summary judgment, holding that the savings statute at NRS 11.500 allowed plaintiffs an additional 90 days after dismissal of the original action to re-file their claims. NRS 11.500 specifically provides that if an action “that is commenced within the applicable period of limitations is dismissed” for lack of subject matter jurisdiction, the action may be recommenced within the later of: (1) the applicable period of limitations, or (2) 90 days after the action is dismissed. The Nevada Supreme Court granted defendants’ writ petition, holding that the original action was never “commenced” because a failure to comply with the affidavit requirement of NRS 41A.071 renders a complaint void ab initio and means that the complaint never legally existed. Thus, the Court held that because the previously dismissed action was never actually “commenced,” NRS 11.500 does not apply. The Court then directed the district court to dismiss plaintiffs’ medical malpractice claims from the January 21, 2010 complaint because the statute of limitations for those claims had expired. (Megan Starich, Associate in the Reno office of McDonald Carano Wilson LLP).
Weddell v. H2O, Inc., 128 Nev. Adv. Op. 9 (March 1, 2012)
Before Justices Saitta, Cherry, and Gibbons. Opinion by Justice Cherry.
In this appeal, the Court addressed the scope of rights of a judgment creditor holding a charging order and the scope of NRS chapter 14 regarding the filing of a lis pendens. After setting forth a brief history of LLCs and the purposes for which they were created, the Court concluded that the holder of a charging order only obtains the rights to any distribution or return of contributions to which the judgment debtor/member would have been entitled. The holder of a charging order does not obtain any managerial authority and cannot reach the assets of the LLC. The Court implicitly approved an involuntary transfer provision in the operating agreement that transferred appellant’s interest in the LLC to the other members upon the service of the charging order. Appellant had filed a lis pendens regarding an option agreement to purchase a membership interest in an LLC. The Court affirmed the district court’s cancellation of the lis pendens since the complaint did not directly involve the resolution of an issue involving real property. Affirmed in part, reversed in part, and remanded. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
In this appeal, the Court addressed the scope of rights of a judgment creditor holding a charging order and the scope of NRS chapter 14 regarding the filing of a lis pendens. After setting forth a brief history of LLCs and the purposes for which they were created, the Court concluded that the holder of a charging order only obtains the rights to any distribution or return of contributions to which the judgment debtor/member would have been entitled. The holder of a charging order does not obtain any managerial authority and cannot reach the assets of the LLC. The Court implicitly approved an involuntary transfer provision in the operating agreement that transferred appellant’s interest in the LLC to the other members upon the service of the charging order. Appellant had filed a lis pendens regarding an option agreement to purchase a membership interest in an LLC. The Court affirmed the district court’s cancellation of the lis pendens since the complaint did not directly involve the resolution of an issue involving real property. Affirmed in part, reversed in part, and remanded. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
Webb v. Shull, 128 Nev. Adv. Op. 8 (March 1, 2012)
Before Justices Douglas, Hardesty, and Parraguirre. Opinion by Justice Hardesty.
In this appeal and cross-appeal, the Court addressed whether proof of a mental state was necessary for an award of treble damages under NRS 113.150, which requires sellers of property to disclose known defects. Based on the plain language of NRS 113.150, the Court held that an award of treble damages under that statute was remedial, not punitive, and did not require any evidence of intent or other heightened mental state. The Court also considered a challenge to the district court’s determination regarding alter ego liability of one of the respondent; however, stating that the district court’s record was unclear and the district court made factual findings at odds with its denial of liability, the Court reversed and remanded for the district court to make factual findings and conclusions of law regarding alter ego liability. Affirmed in part, vacated in part, and remanded. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
In this appeal and cross-appeal, the Court addressed whether proof of a mental state was necessary for an award of treble damages under NRS 113.150, which requires sellers of property to disclose known defects. Based on the plain language of NRS 113.150, the Court held that an award of treble damages under that statute was remedial, not punitive, and did not require any evidence of intent or other heightened mental state. The Court also considered a challenge to the district court’s determination regarding alter ego liability of one of the respondent; however, stating that the district court’s record was unclear and the district court made factual findings at odds with its denial of liability, the Court reversed and remanded for the district court to make factual findings and conclusions of law regarding alter ego liability. Affirmed in part, vacated in part, and remanded. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
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