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).
Thursday, September 27, 2012
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).
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