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).

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.)

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.)

Café Moda v. Palma, 128 Nev. Adv. Op. 7 (March 1, 2012)

Before Justices Douglas, Hardesty, and Parraguirre. Opinion by Justice Parraguirre.
In this appeal, the Court addressed NRS 41.141, Nevada’s comparative negligence statute, and whether it allowed for the apportionment of a damages award between negligent and intentional tortfeasors. Concluding that NRS 41.141 is ambiguous and turning to the legislative history and intent, the Court determined that “negligence” in the statute meant “fault”. As such, liability could be apportioned between negligent and intentional tortfeasors. The negligent tortfeasor was severally liable up to the level of fault found by the jury; the intentional tortfeasor was jointly and severally liable for the entire amount of damage. Reversed and remanded for the district court to enter a modified judgment. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)

Finkel v. Cashman Professional, Inc., 128 Nev. Adv. Op. 6 (March 1, 2012)

Before Justices Saitta, Hardesty, and Parraguirre. Opinion by Justice Parraguirre.
In this consolidated appeal from an order granting a preliminary injunction and an order refusing to dissolve the preliminary injunction, the Court applied the test for preliminary injunction and then addressed an issue of first impression in Nevada: whether non-competition provisions of an agreement should continue to be enforced after the expiration of the agreement. The agreement in this case prohibited appellant from competing against the respondent’s business, hiring respondent’s employees, making disparaging remarks about respondent, and disclosing any non-public information regarding the nature of respondent’s business. During the term of the agreement, appellant took many of those actions. Based on factual findings regarding appellant’s breach of the agreement, the district court entered a preliminary injunction binding appellant to the terms of the agreement; the Court affirmed the order granting the injunction. After the agreement expired, appellant moved to dissolve the injunction and the district court refused. The Court reversed the district court, holding that the injunction should have been dissolved except as to those portions of the injunction designed to protect respondent’s trade secrets. The Court held that the district court had not correctly applied the factors for extending an injunction under the Uniform Trade Secrets Act and reversed and remanded for appropriate consideration of those factors. Reversed and remanded. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)

Carstarphen v. Milsner, 128 Nev. Adv. Op. 5 (March 1, 2012)

Before the Court en banc. Opinion by Justice Cherry. Justice Pickering dissenting.
In this appeal from an order dismissing a case for failure to bring it to trial within five years, the Court reaffirmed its factors for evaluating a motion for a preferential trial setting and resolved an inconsistency in the case law regarding the allowable time to bring an action to trial following a reversal and remand. A district court has discretion to grant a preferential trial date, but must consider (1) the time remaining in the five-year period when the motion is filed, and (2) the diligence of the moving party and his or her counsel in prosecuting the case. Resolving a conflict between a decision that gave three years to bring a case to trial after a remand and a case that gave “a reasonable time” to bring a case to trial, the Court concluded that the three-year rule was more clear and certain rule was the three-year rule. As such, when an erroneous judgment or dismissal is reversed on appeal, a plaintiff has three years from the date of the remittitur to bring the action to trial. In dissent, Justice Pickering asserted that because the appellant had argued for the decision of the district court that lead to the error, the doctrine of invited error barred his arguments on appeal. Justice Pickering would have affirmed the district court’s dismissal. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)