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.)
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