Before the Court en banc. Opinion by Justice Parraguirre.
In this appeal from a district court order granting a petition for a writ of mandamus, the Court addressed whether individual retiree files that are maintained by Public Employees’ Retirement System of Nevada (“PERS”) are subject to public access. In 2011, the Reno Gazette-Journal (“RGJ”) submitted a public records request to PERS in furtherance of an investigation into government expenditures and the public cost of the retiree pensions. PERS rejected the request asserting that the records were confidential and RGJ responded with a writ petition in district court on the basis that the information was not confidential because it was compiled from public documents. The district court granted RGJ’s petition, concluding that the records sought (e.g. names of retirees, names of government employers, salaries, hire and retirement dates, amounts of pension payments) were not confidential under the applicable statutes (NRS 286.110(3) and 286.117), and further ordered PERS to produce a report that contained the requested information. PERS appealed. The Court considered the scope of confidentiality set forth in NRS 286.110(3), which states, in part: “[t]he official correspondence and records, other than the files of individual members or retired employees,…are public records and are available for public inspection.” (emphasis added). The Court held that the limitation in NRS 286.110(3) must be construed narrowly and only protects an individual’s file itself, but not all information therein merely because it exists in an individual’s file. For example, if the information is contained in other reports, media, etc., the information is not confidential just because the same information exists in an individual’s file. The Court acknowledged that other statutes, rules, or caselaw could form an independent basis for confidentiality; however, PERS did not identify any separate legal authority that would preclude RGJ’s request. The Court also rejected PERS’ alternative argument that the district court erred in concluding that the government’s interest in maintaining confidentiality of the individuals’ files did not outweigh the public’s interest in access to the information. The Court noted that the rationales proffered by PERS (greater risk of identity theft and elder abuse if records disclosed) were not supported by sufficient evidence that actual harm would occur and were merely speculative. The Court vacated the district court’s order to the extent it required PERS to create or customize reports by searching or compiling information. Affirmed in part, vacated in part. (Kristen T. Gallagher, Associate in the Las Vegas office of McDonald Carano Wilson LLP).
Thursday, November 14, 2013
Thursday, November 7, 2013
Sandpointe Apts. v. Eighth Jud. Dist. Ct., 129 Nev. Adv. Op. 87 (Nov. 14, 2013)
Before the Court en banc. Opinion by Justice Saitta.
Justices Cherry and Parraguirre dissented.
In this writ petition, the Court held that NRS 40.459(1)(c), which was added to Nevada’s law by Assembly Bill 273, may not apply retroactively to limit the amount of a deficiency judgment that can be recovered by persons who acquired the right to obtain the judgment from someone else who held that right. The protections of NRS 40.459(1)(c) are therefore only applicable to judicial foreclosures or trustee’s sales occurring on or after the effective date (June 10, 2011) of the statute. Petitioner Sandpointe Apartments, LLC (“Sandpointe”) received a loan from Silver State Bank in 2007 for the construction of an apartment complex. The loan was secured via a deed of trust on the real property and backed by a personal guarantee from Petitioner Stacy Yahraus-Lewis. Silver State Bank closed in 2008 and the Federal Deposit Insurance Corporation (“FDIC”) was appointed as receiver. After Sandpointe had already defaulted on its loan in 2009, the FDIC sold the loan and personal guarantee to Multibank, which then transferred its interest in the loan and guarantee to its wholly owned subsidiary, real party in interest, CML-NV Sandpointe, LLC (“CML-NV”). In early 2011, CML-NV foreclosed on Sandpointe’s loan and purchased the real property securing the loan at a trustee’s sale. Subsequently on June 10, 2011, the Governor signed Assembly Bill 273 into law, which had been unanimously passed by the Nevada Legislature. The relevant provision, codified as NRS 40.459(1)(c), provides that if “the person seeking the [deficiency] judgment acquired the right to obtain the judgment from a person who previously held that right,” then the person seeking the deficiency judgment may only recover “the amount by which the amount of the consideration paid for that right exceeds the fair market value of the property sold at the time of sale or the amount for which the property was actually sold, whichever is greater, with interest from the date of sale and reasonable costs.” CML-NV filed a complaint against Sandpointe and Yahraus-Lewis for deficiency and breach of guaranty on June 27, 2011. At a hearing on cross-motions for summary judgment, the district court concluded that NRS 40.459(1)(c) only applies to loans entered into after June 10, 2011. Thereafter, Sandpointe and Yahraus-Lewis petitioned the Supreme Court for a writ of mandamus or prohibition directing the district court to apply NRS 40.459(1)(c) to CML-NV’s deficiency judgment. Nevada statutes are presumed to operate only prospectively unless the Legislature clearly manifests an intent to apply the statute retroactively or it clearly appears from the statute itself that the Legislature’s intent cannot be implemented in the absence of retroactivity. A statute has retroactive effect when it takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past. The Court held that the right to a deficiency judgment is a vested right as of the date of a trustee’s sale, which is when the amount of a deficiency is fixed. Related statutes, such as NRS 40.462(1), provide that the right to receive proceeds from a foreclosure sale vests at the time of the sale. Thus, the Court found it logical that the right to a judgment for the amount not received in a foreclosure sale would arise, and vest, on the same date as the right to receive amounts received from the sale. Applying NRS 40.459(1)(c) to deficiencies arising from sales prior to the enactment of the statute would affect vested rights and therefore would have an impermissible retroactive effect. An investigation into legislative intent was considered unwarranted by the majority as NRS 40.459(1)(c)’s provision that it becomes effective upon passage and approval is plain and unambiguous. Even if legislative history were consulted though, the majority noted that the author of Assembly Bill 273 stated on several occasions that the legislation could not be applied retroactively. Moreover, the presumption against retroactivity was not considered rebutted simply because the statute would have a broader impact if applied to transactions prior to 2011 as prospective application could still accomplish the legislative intent with respect to many loans. The Court rejected Petitioners’ argument that NRS 40.459(1)(c) is not retroactive because the statute merely clarifies existing law. Although another statute, NRS 40.451, limits a lien amount to the amount of consideration paid, the Court noted that the lien amount is only one factor determining the total amount of indebtedness, which is the figure used to determine the deficiency judgment amount. Additionally, the Court distinguished NRS 40.459(1)(c) as applicable to guarantors unlike NRS 40.451. Justices Cherry and Parraguirre dissented from the majority holding and would have granted the writ petition on the basis that the real party in interest had not yet obtained a deficiency judgment. The dissent argued that NRS 40.459(1)(c) applies at the time that a deficiency judgment is lawfully obtained and that until such judgment, a creditor only has a contingent remedy for potential deficiency and not a vested right. The dissent found persuasive the statement in the Legislative Counsel Digest that the provisions of Assembly Bill 273 would “apply to a deficiency judgment awarded on or after” the effective date and the Legislature’s corresponding declaration in its amicus curiae brief that it intended NRS 40.459(1)(c) to apply to every deficiency judgment awarded on or after the effective date. Noting the policy rationales of stopping profiteering activities and ensuring fairness to all parties to a transaction secured by realty, the dissent criticized the majority opinion for ignoring these objectives and denying protection to borrowers and guarantors who were the intended beneficiaries of the legislation. Petition denied. (Adam Hosmer-Henner, Associate in the Reno office of McDonald Carano Wilson.)
In this writ petition, the Court held that NRS 40.459(1)(c), which was added to Nevada’s law by Assembly Bill 273, may not apply retroactively to limit the amount of a deficiency judgment that can be recovered by persons who acquired the right to obtain the judgment from someone else who held that right. The protections of NRS 40.459(1)(c) are therefore only applicable to judicial foreclosures or trustee’s sales occurring on or after the effective date (June 10, 2011) of the statute. Petitioner Sandpointe Apartments, LLC (“Sandpointe”) received a loan from Silver State Bank in 2007 for the construction of an apartment complex. The loan was secured via a deed of trust on the real property and backed by a personal guarantee from Petitioner Stacy Yahraus-Lewis. Silver State Bank closed in 2008 and the Federal Deposit Insurance Corporation (“FDIC”) was appointed as receiver. After Sandpointe had already defaulted on its loan in 2009, the FDIC sold the loan and personal guarantee to Multibank, which then transferred its interest in the loan and guarantee to its wholly owned subsidiary, real party in interest, CML-NV Sandpointe, LLC (“CML-NV”). In early 2011, CML-NV foreclosed on Sandpointe’s loan and purchased the real property securing the loan at a trustee’s sale. Subsequently on June 10, 2011, the Governor signed Assembly Bill 273 into law, which had been unanimously passed by the Nevada Legislature. The relevant provision, codified as NRS 40.459(1)(c), provides that if “the person seeking the [deficiency] judgment acquired the right to obtain the judgment from a person who previously held that right,” then the person seeking the deficiency judgment may only recover “the amount by which the amount of the consideration paid for that right exceeds the fair market value of the property sold at the time of sale or the amount for which the property was actually sold, whichever is greater, with interest from the date of sale and reasonable costs.” CML-NV filed a complaint against Sandpointe and Yahraus-Lewis for deficiency and breach of guaranty on June 27, 2011. At a hearing on cross-motions for summary judgment, the district court concluded that NRS 40.459(1)(c) only applies to loans entered into after June 10, 2011. Thereafter, Sandpointe and Yahraus-Lewis petitioned the Supreme Court for a writ of mandamus or prohibition directing the district court to apply NRS 40.459(1)(c) to CML-NV’s deficiency judgment. Nevada statutes are presumed to operate only prospectively unless the Legislature clearly manifests an intent to apply the statute retroactively or it clearly appears from the statute itself that the Legislature’s intent cannot be implemented in the absence of retroactivity. A statute has retroactive effect when it takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past. The Court held that the right to a deficiency judgment is a vested right as of the date of a trustee’s sale, which is when the amount of a deficiency is fixed. Related statutes, such as NRS 40.462(1), provide that the right to receive proceeds from a foreclosure sale vests at the time of the sale. Thus, the Court found it logical that the right to a judgment for the amount not received in a foreclosure sale would arise, and vest, on the same date as the right to receive amounts received from the sale. Applying NRS 40.459(1)(c) to deficiencies arising from sales prior to the enactment of the statute would affect vested rights and therefore would have an impermissible retroactive effect. An investigation into legislative intent was considered unwarranted by the majority as NRS 40.459(1)(c)’s provision that it becomes effective upon passage and approval is plain and unambiguous. Even if legislative history were consulted though, the majority noted that the author of Assembly Bill 273 stated on several occasions that the legislation could not be applied retroactively. Moreover, the presumption against retroactivity was not considered rebutted simply because the statute would have a broader impact if applied to transactions prior to 2011 as prospective application could still accomplish the legislative intent with respect to many loans. The Court rejected Petitioners’ argument that NRS 40.459(1)(c) is not retroactive because the statute merely clarifies existing law. Although another statute, NRS 40.451, limits a lien amount to the amount of consideration paid, the Court noted that the lien amount is only one factor determining the total amount of indebtedness, which is the figure used to determine the deficiency judgment amount. Additionally, the Court distinguished NRS 40.459(1)(c) as applicable to guarantors unlike NRS 40.451. Justices Cherry and Parraguirre dissented from the majority holding and would have granted the writ petition on the basis that the real party in interest had not yet obtained a deficiency judgment. The dissent argued that NRS 40.459(1)(c) applies at the time that a deficiency judgment is lawfully obtained and that until such judgment, a creditor only has a contingent remedy for potential deficiency and not a vested right. The dissent found persuasive the statement in the Legislative Counsel Digest that the provisions of Assembly Bill 273 would “apply to a deficiency judgment awarded on or after” the effective date and the Legislature’s corresponding declaration in its amicus curiae brief that it intended NRS 40.459(1)(c) to apply to every deficiency judgment awarded on or after the effective date. Noting the policy rationales of stopping profiteering activities and ensuring fairness to all parties to a transaction secured by realty, the dissent criticized the majority opinion for ignoring these objectives and denying protection to borrowers and guarantors who were the intended beneficiaries of the legislation. Petition denied. (Adam Hosmer-Henner, Associate in the Reno office of McDonald Carano Wilson.)
Otak Nevada, LLC v. Eighth Jud. Dist. Ct., 129 Nev. Adv. Op. 86 (Nov. 7, 2013)
Before the Court en banc. Opinion by Justice Hardesty.
This original petition for writ of mandamus arose out of district court litigation pertaining to a fatal automobile accident at a construction site in Las Vegas. Otak Nevada, LLC (“Otak”) was the architect on the project; Real Parties in Interest Cheyenne Apartments, PPG, LP, Pacificap Holdings XXIX, LLC, Pacificap Properties Group, LLC, and Chad Rennaker and Jason Rennaker (collectively, “Owners”) were the owners and developers, and Pacificap Construction Services, LLC (the “Contractor”) was the general contractor. Otak entered into an agreement with the Owners to design a multifamily housing project, then subcontracted with an engineering firm to design traffic medians and replace traffic markers near the construction site. The accident occurred because one of the medians was not installed and the traffic markers were not replaced. The plaintiffs eventually agreed to settle their claims against Otak for $210,000.00, after which Otak filed a motion to approve a good-faith settlement. The district court granted the motion and rejected the Owners’ and Contractor’s arguments that the settlement would unfairly shift Otak’s liability to them, and that the proposed amount of the settlement was less than Otak’s potential liability or its insurance policy limits. Thereafter, the court granted the Owners leave to file a third party complaint against Otak, which Otak moved to dismiss on the grounds that all proposed claims were barred by NRS 17.245. Otak filed its writ petition after the district court denied Otak’s motion to dismiss. The Court first determined that the evidence in the record demonstrated that Otak’s liability was minimal: Otak was not contractually required to visit the site to report unsafe conditions, nor was it contractually responsible for safety programs or precautions. Moreover, Otak did not breach any duties that it owed to any of the parties, and it was not involved in, or responsible for, the road construction that resulted in the accident. The Court also noted that insurance policy limits are not “exclusive criteria in determining whether a settlement is in good faith,” and the fact that a settlement may eliminate third party liability does not mean that the settlement was made in bad faith. Therefore, the district court did not abuse its discretion by granting Otak’s motion for approval of good-faith settlement. Next, the Court examined NRS 17.245(1)(b), which “discharges the tortfeasor to whom [a release from liability] is given from all liability for contribution and for equitable indemnity to any other tortfeasor.” The Court noted that the statute “does not state whether ‘contribution’ [an equitable sharing of liability] or ‘equitable indemnity [a complete shift of liability to the party that is primarily responsible] only include claims titled as such, or whether NRS 17.245(1)(b)’s bar encompasses all theories of recovery that seek contribution or equitable indemnity, regardless of the claim’s actual title.” In holding that the statute requires that latter, the Court first noted that the purpose of the Uniform Contribution Act Among Tortfeasors was to “permit plaintiffs to sever a joint tortfeasor from the case without needing to first reach a global settlement with all of the defendants.” Next, the Court observed that the Nevada Legislature amended NRS 17.245 in 1997; prior to that time, the statute barred a non-settling defendant from seeking contribution from a settling defendant, but permitted claims for equitable indemnity. The legislative history revealed that the amendment was made “to eliminate [equitable indemnity as a] defense and promote and encourage settlements among joint defendants.” Thus, the Court concluded that after a defendant has settled in good faith, 17.245(1)(b) bars all claims that seek contribution or equitable indemnity damages from that defendant, regardless of how those claims are titled. The Court also held that because NRS 17.245(1)(b) does not distinguish between equitable and contractual contribution claims, all contribution claims are barred by the approval of a good-faith settlement. In determining whether a claim seeks contribution or equitable indemnity, district courts should consider whether “(1) the claim arose from the same basis on which the settling defendant would be liable to the plaintiff, and (2) the claim seeks damages comparable to those recoverable in contribution or indemnity actions.” In light of this standard, the Court concluded that the Owners’ claim for express (contractual) indemnity was actually a claim for contribution, because the contractual provision at issue apportioned liability according to fault rather than shifting liability to the party that was primarily responsible for damages. Therefore, the Owners could not prevail on this claim. Likewise, because the Owners did not seek any damages from Otak that were unrelated to the accident, nor did the Owners allege that Otak breached any duties to them “on a basis other than that Otak was potentially responsible for the plaintiffs’ accident,” its contract-based claims were actually claims for contribution. Those claims were also barred by the statute. Petition granted. (Patrick Murch, Associate in the Las Vegas office of McDonald Carano Wilson).
This original petition for writ of mandamus arose out of district court litigation pertaining to a fatal automobile accident at a construction site in Las Vegas. Otak Nevada, LLC (“Otak”) was the architect on the project; Real Parties in Interest Cheyenne Apartments, PPG, LP, Pacificap Holdings XXIX, LLC, Pacificap Properties Group, LLC, and Chad Rennaker and Jason Rennaker (collectively, “Owners”) were the owners and developers, and Pacificap Construction Services, LLC (the “Contractor”) was the general contractor. Otak entered into an agreement with the Owners to design a multifamily housing project, then subcontracted with an engineering firm to design traffic medians and replace traffic markers near the construction site. The accident occurred because one of the medians was not installed and the traffic markers were not replaced. The plaintiffs eventually agreed to settle their claims against Otak for $210,000.00, after which Otak filed a motion to approve a good-faith settlement. The district court granted the motion and rejected the Owners’ and Contractor’s arguments that the settlement would unfairly shift Otak’s liability to them, and that the proposed amount of the settlement was less than Otak’s potential liability or its insurance policy limits. Thereafter, the court granted the Owners leave to file a third party complaint against Otak, which Otak moved to dismiss on the grounds that all proposed claims were barred by NRS 17.245. Otak filed its writ petition after the district court denied Otak’s motion to dismiss. The Court first determined that the evidence in the record demonstrated that Otak’s liability was minimal: Otak was not contractually required to visit the site to report unsafe conditions, nor was it contractually responsible for safety programs or precautions. Moreover, Otak did not breach any duties that it owed to any of the parties, and it was not involved in, or responsible for, the road construction that resulted in the accident. The Court also noted that insurance policy limits are not “exclusive criteria in determining whether a settlement is in good faith,” and the fact that a settlement may eliminate third party liability does not mean that the settlement was made in bad faith. Therefore, the district court did not abuse its discretion by granting Otak’s motion for approval of good-faith settlement. Next, the Court examined NRS 17.245(1)(b), which “discharges the tortfeasor to whom [a release from liability] is given from all liability for contribution and for equitable indemnity to any other tortfeasor.” The Court noted that the statute “does not state whether ‘contribution’ [an equitable sharing of liability] or ‘equitable indemnity [a complete shift of liability to the party that is primarily responsible] only include claims titled as such, or whether NRS 17.245(1)(b)’s bar encompasses all theories of recovery that seek contribution or equitable indemnity, regardless of the claim’s actual title.” In holding that the statute requires that latter, the Court first noted that the purpose of the Uniform Contribution Act Among Tortfeasors was to “permit plaintiffs to sever a joint tortfeasor from the case without needing to first reach a global settlement with all of the defendants.” Next, the Court observed that the Nevada Legislature amended NRS 17.245 in 1997; prior to that time, the statute barred a non-settling defendant from seeking contribution from a settling defendant, but permitted claims for equitable indemnity. The legislative history revealed that the amendment was made “to eliminate [equitable indemnity as a] defense and promote and encourage settlements among joint defendants.” Thus, the Court concluded that after a defendant has settled in good faith, 17.245(1)(b) bars all claims that seek contribution or equitable indemnity damages from that defendant, regardless of how those claims are titled. The Court also held that because NRS 17.245(1)(b) does not distinguish between equitable and contractual contribution claims, all contribution claims are barred by the approval of a good-faith settlement. In determining whether a claim seeks contribution or equitable indemnity, district courts should consider whether “(1) the claim arose from the same basis on which the settling defendant would be liable to the plaintiff, and (2) the claim seeks damages comparable to those recoverable in contribution or indemnity actions.” In light of this standard, the Court concluded that the Owners’ claim for express (contractual) indemnity was actually a claim for contribution, because the contractual provision at issue apportioned liability according to fault rather than shifting liability to the party that was primarily responsible for damages. Therefore, the Owners could not prevail on this claim. Likewise, because the Owners did not seek any damages from Otak that were unrelated to the accident, nor did the Owners allege that Otak breached any duties to them “on a basis other than that Otak was potentially responsible for the plaintiffs’ accident,” its contract-based claims were actually claims for contribution. Those claims were also barred by the statute. Petition granted. (Patrick Murch, Associate in the Las Vegas office of McDonald Carano Wilson).
Humphries v. Eighth Jud. Dist. Ct., 129 Nev. Adv. Op. 85 (Nov. 7, 2013)
Before Justices Hardesty, Parraguirre and Cherry. Opinion by Justice Parraguirre.
In this petition for writ of mandamus, the Court considered whether the district court erred in compelling petitioners (Carey Humphries and Lorenza Rocha, II) to join an intentional tortfeasor (Erik Ferrell) as a necessary party in petitioners’ action against a negligent cotortfeasor (New York-New York). Ferrell and petitioners were involved in an altercation at New York-New York after which Ferrell was arrested and convicted for battery. Petitioners sued New York-New York for negligence. The complaint did not include any claims against Ferrell. New York-New York asserted petitioners’ comparative negligence as an affirmative defense and argued that Ferrell was a necessary party for determining comparative negligence under NRS 41.141. The Court focused its inquiry on whether the absence of a cotortfeasor eliminates the requirement for apportionment of liability as set forth in NRS 41.141(2)(b)(2). In answering in the affirmative, the Court noted that a plaintiff who sues one tortfeasor may recover 100% of damages from that tortfeasor even if another, absent tortfeasor is also at fault. Given this finding, the Court concluded that it can accord complete relief to all parties even when a cotortfeasor is not named in the action. Thus, an absent cotortfeasor is not a necessary party under NRCP 19(a) when a jointly and severally liable defendant is sued. The Court noted that although petitioners would not be compelled to join Ferrell as a codefendant, New York-New York was free to implead Ferrell based on the theory of contribution. Petition granted. (Amanda M. Perach, Associate in the Las Vegas office of McDonald Carano Wilson).
In this petition for writ of mandamus, the Court considered whether the district court erred in compelling petitioners (Carey Humphries and Lorenza Rocha, II) to join an intentional tortfeasor (Erik Ferrell) as a necessary party in petitioners’ action against a negligent cotortfeasor (New York-New York). Ferrell and petitioners were involved in an altercation at New York-New York after which Ferrell was arrested and convicted for battery. Petitioners sued New York-New York for negligence. The complaint did not include any claims against Ferrell. New York-New York asserted petitioners’ comparative negligence as an affirmative defense and argued that Ferrell was a necessary party for determining comparative negligence under NRS 41.141. The Court focused its inquiry on whether the absence of a cotortfeasor eliminates the requirement for apportionment of liability as set forth in NRS 41.141(2)(b)(2). In answering in the affirmative, the Court noted that a plaintiff who sues one tortfeasor may recover 100% of damages from that tortfeasor even if another, absent tortfeasor is also at fault. Given this finding, the Court concluded that it can accord complete relief to all parties even when a cotortfeasor is not named in the action. Thus, an absent cotortfeasor is not a necessary party under NRCP 19(a) when a jointly and severally liable defendant is sued. The Court noted that although petitioners would not be compelled to join Ferrell as a codefendant, New York-New York was free to implead Ferrell based on the theory of contribution. Petition granted. (Amanda M. Perach, Associate in the Las Vegas office of McDonald Carano Wilson).
Elizondo v. Hood Mach., Inc., 129 Nev. Adv. Op. 84 (Nov. 7, 2013)
Before Justices Hardesty, Parraguirre, and Cherry. Opinion by Justice Hardesty.
In this appeal, the Court considered whether an appeals officer’s conclusory order in a workers’ compensation matter failed to meet the statutory requirements of NRS 233B.125 by not including findings of fact and conclusions of law. NRS 233B.125 governs adverse written orders in administrative proceedings and states that “a final decision must include findings of facts and conclusions of law, separately stated.” The Court concluded that the appeals officer’s order was deficient by omitting specific findings of fact or citation to the law as required by the plain and unambiguous language of NRS 233B.125. The Court also analyzed whether the doctrines of claim and issue preclusion compelled dismissal of Appellant’s fourth attempt to reopen an industrial injury claim. NRS 616C.390 provided Appellant with a statutory right to request the reopening of his claim and upon written application, the insurer was required to reopen a claim based on a change of circumstances. The Court concluded that the appeals officer erred by applying the doctrines of issue and claim preclusion because the proper analysis is whether there is a change of circumstances. Accordingly, the district court’s rejection of the request to reopen Elizondo’s claim on preclusion grounds was in error. Reversed and remanded. (Lisa M. Wiltshire Alstead, Associate in the Reno office of McDonald Carano Wilson LLP.)
In this appeal, the Court considered whether an appeals officer’s conclusory order in a workers’ compensation matter failed to meet the statutory requirements of NRS 233B.125 by not including findings of fact and conclusions of law. NRS 233B.125 governs adverse written orders in administrative proceedings and states that “a final decision must include findings of facts and conclusions of law, separately stated.” The Court concluded that the appeals officer’s order was deficient by omitting specific findings of fact or citation to the law as required by the plain and unambiguous language of NRS 233B.125. The Court also analyzed whether the doctrines of claim and issue preclusion compelled dismissal of Appellant’s fourth attempt to reopen an industrial injury claim. NRS 616C.390 provided Appellant with a statutory right to request the reopening of his claim and upon written application, the insurer was required to reopen a claim based on a change of circumstances. The Court concluded that the appeals officer erred by applying the doctrines of issue and claim preclusion because the proper analysis is whether there is a change of circumstances. Accordingly, the district court’s rejection of the request to reopen Elizondo’s claim on preclusion grounds was in error. Reversed and remanded. (Lisa M. Wiltshire Alstead, Associate in the Reno office of McDonald Carano Wilson LLP.)
Thursday, October 31, 2013
Civil Rights for Seniors v. AOC, 129 Nev. Adv. Op. 80 (Oct. 31, 2013)
Before the Court en banc (Justice Saitta recused). Opinion per curiam.
In this appeal, the Court addressed the scope of public access to certain records maintained by the Administrative Office of Courts (“AOC”). The AOC is charged with administering Nevada’s Foreclosure Mediation Program (“FMP”). Appellant Civil Rights for Seniors (“CRS”) sought access to documents related to the FMP under Nevada’s Public Records Act (“the Act”), NRS 239. Generally speaking, the Act requires governmental entities to produce public records unless they are otherwise deemed confidential. NRS 239.010. CRS’s request included copies of mediator statements and FMP certificates, correspondence between AOC employees and law firm billings. The AOC denied the request, claiming the documents were either confidential or privileged. In response, CRS filed a petition for writ of mandamus with the district court to compel production of the documents. The district court rejected the petition on the grounds that the AOC was not a “governmental entity” within the meaning of the Act and therefore not subject to its disclosure requirements. The Court affirmed the district court but did not address the applicability of the Act to the AOC. Instead, the Court held that the confidentiality provisions of the Foreclosure Mediation Rules rendered the documents confidential as a matter of law. As such, the documents were not subject to disclosure under the Act regardless of whether the AOC constituted a “governmental entity” within the meaning of the Act. The Court further concluded that the documents were not subject to disclosure as court records or pursuant to principles of common law. Affirmed. (Lucas Foletta, Associate in the Reno office of McDonald Carano Wilson.)
In this appeal, the Court addressed the scope of public access to certain records maintained by the Administrative Office of Courts (“AOC”). The AOC is charged with administering Nevada’s Foreclosure Mediation Program (“FMP”). Appellant Civil Rights for Seniors (“CRS”) sought access to documents related to the FMP under Nevada’s Public Records Act (“the Act”), NRS 239. Generally speaking, the Act requires governmental entities to produce public records unless they are otherwise deemed confidential. NRS 239.010. CRS’s request included copies of mediator statements and FMP certificates, correspondence between AOC employees and law firm billings. The AOC denied the request, claiming the documents were either confidential or privileged. In response, CRS filed a petition for writ of mandamus with the district court to compel production of the documents. The district court rejected the petition on the grounds that the AOC was not a “governmental entity” within the meaning of the Act and therefore not subject to its disclosure requirements. The Court affirmed the district court but did not address the applicability of the Act to the AOC. Instead, the Court held that the confidentiality provisions of the Foreclosure Mediation Rules rendered the documents confidential as a matter of law. As such, the documents were not subject to disclosure under the Act regardless of whether the AOC constituted a “governmental entity” within the meaning of the Act. The Court further concluded that the documents were not subject to disclosure as court records or pursuant to principles of common law. Affirmed. (Lucas Foletta, Associate in the Reno office of McDonald Carano Wilson.)
Wynn Las Vegas, L.L.C. v. Baldonado, 129 Nev. Adv. Op. 78 (Oct. 31, 2013)
Before the Court en banc. Opinion by Justice Douglas.
In this appeal, the Court considered whether Nevada law allows employers to require employees to pool their tips with other employees of a different rank. The Court held that NRS 608.160 permits employers to require tip-pooling as long as the employer does not take and keep the employees’ tips. In reaching this conclusion, the Court clarified that the United States District Court for the District of Nevada’s interpretation of NRS 608.160 as set forth in Moen v. Las Vegas International Hotel, Inc., 402 F.Supp. 157 (D. Nev. 1975), and adopted by the Nevada Supreme Court in Alford v. Harolds Club, 99 Nev. 670, 674, 669 P.2d 721, 723 (1983), did not create a “direct-benefit” test for tip-sharing because every tip-pooling policy benefits the employer in some way, and the benefit discussed in Moen was the keeping of employees’ tips by the employer. The Court then remanded this matter because the district court did not consider claims brought under NRS 608.100 and NRS 613.120, and NRS 233B.130 requires judicial review when an aggrieved party meets all applicable procedural requirements. The Court further determined that whether employees should be granted class certification is within the Labor Commissioner’s discretion. Accordingly, the district court erred in failing to defer to the Commissioner’s interpretation that NAC 607.200 did not permit class certification in this case. Reversed and remanded. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson.)
In this appeal, the Court considered whether Nevada law allows employers to require employees to pool their tips with other employees of a different rank. The Court held that NRS 608.160 permits employers to require tip-pooling as long as the employer does not take and keep the employees’ tips. In reaching this conclusion, the Court clarified that the United States District Court for the District of Nevada’s interpretation of NRS 608.160 as set forth in Moen v. Las Vegas International Hotel, Inc., 402 F.Supp. 157 (D. Nev. 1975), and adopted by the Nevada Supreme Court in Alford v. Harolds Club, 99 Nev. 670, 674, 669 P.2d 721, 723 (1983), did not create a “direct-benefit” test for tip-sharing because every tip-pooling policy benefits the employer in some way, and the benefit discussed in Moen was the keeping of employees’ tips by the employer. The Court then remanded this matter because the district court did not consider claims brought under NRS 608.100 and NRS 613.120, and NRS 233B.130 requires judicial review when an aggrieved party meets all applicable procedural requirements. The Court further determined that whether employees should be granted class certification is within the Labor Commissioner’s discretion. Accordingly, the district court erred in failing to defer to the Commissioner’s interpretation that NAC 607.200 did not permit class certification in this case. Reversed and remanded. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson.)
Blanco v. Blanco, 129 Nev. Adv. Op. 77 (Oct. 31, 2013)
Before the Court en banc. Opinion by Justice Hardesty.
In this appeal from a divorce decree entered by default in the district court, the Court considered the propriety of case-concluding discovery sanctions for failure to respond to discovery requests when the case involves child custody and child support claims. The Court concluded that case-terminating discovery sanctions were impermissible in cases involving child custody and child support because the sole consideration of the court in such matters is the child’s best interest; other sanctions, such as contempt, monetary sanctions, and attorney’s fees, are still available in such cases. The Court also concluded that case-concluding discovery sanctions were permissible in the claims for property division, spousal support, and attorneys’ fees, but that any such sanction must comply with the procedural due process requirements of Young v. Johnny Ribeiro Bldg, Inc. and Foster v. Dingwall. Thus, a trial court must determine whether the discovery sanction is warranted and whether the sanction relates to the claims at issue in the violated discovery order, and then must support the sanction with an explanation of the pertinent factors guiding such determination. Although the factual determinations regarding property division often necessitate an evidentiary hearing, a trial court may render a decision on spousal support and attorneys’ fees without such a hearing. Because the Court held that case-concluding sanctions were impermissible in child custody and support matters, and because the district court did not conduct the appropriate Young/Foster analysis, the entry of a divorce decree by default was improper. Reversed and remanded for further proceedings. (Rory T. Kay, Associate in the Las Vegas office of McDonald Carano Wilson LLP.)
In this appeal from a divorce decree entered by default in the district court, the Court considered the propriety of case-concluding discovery sanctions for failure to respond to discovery requests when the case involves child custody and child support claims. The Court concluded that case-terminating discovery sanctions were impermissible in cases involving child custody and child support because the sole consideration of the court in such matters is the child’s best interest; other sanctions, such as contempt, monetary sanctions, and attorney’s fees, are still available in such cases. The Court also concluded that case-concluding discovery sanctions were permissible in the claims for property division, spousal support, and attorneys’ fees, but that any such sanction must comply with the procedural due process requirements of Young v. Johnny Ribeiro Bldg, Inc. and Foster v. Dingwall. Thus, a trial court must determine whether the discovery sanction is warranted and whether the sanction relates to the claims at issue in the violated discovery order, and then must support the sanction with an explanation of the pertinent factors guiding such determination. Although the factual determinations regarding property division often necessitate an evidentiary hearing, a trial court may render a decision on spousal support and attorneys’ fees without such a hearing. Because the Court held that case-concluding sanctions were impermissible in child custody and support matters, and because the district court did not conduct the appropriate Young/Foster analysis, the entry of a divorce decree by default was improper. Reversed and remanded for further proceedings. (Rory T. Kay, Associate in the Las Vegas office of McDonald Carano Wilson LLP.)
Thursday, October 3, 2013
N. Lake Tahoe Fire v. Washoe Cnty. Comm'rs, 129 Nev. Adv. Op. 72 (Oct. 3, 2013)
Before Justices Hardesty, Parraguirre, and Cherry. Opinion by Justice Cherry.
In this writ petition, the Court addressed the conflict between Washoe County and the governmental units to which Washoe County distributes property taxes it collects. The dispute arose because, in a series of previous cases, Washoe County was ordered to refund excessive property tax payments to property owners in Incline Village and Crystal Bay because the taxes were based upon improper appraisals. Washoe County withheld a pro rata share of the amounts it needed to refund, plus interest, from distributions made to its taxing units, including petitioner the North Lake Tahoe Fire Protection District (the “FPD”). The FPD petitioned for mandamus, arguing that Washoe County exceeded its authority when it withheld payments. After reviewing Nevada’s political question jurisprudence, the Court expressly adopted the factors from the United States Supreme Court’s decision in Baker v. Carr, 369 U.S. 186 (1962), to help determine if a case presents a political question inappropriate for judicial review. Concluding that the Washoe County Commissioner’s had discretion to make a policy decision regarding the tax refund liability, the Court determined that the Commissioner’s decision presented an issue that had no judicially discoverable or manageable standards for resolution and was impossible to decide without an initial policy determination of the type not suited to the courts. As such, the Court held that the writ petition presented a political question inappropriate for judicial review and denied the writ. Petition denied. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
In this writ petition, the Court addressed the conflict between Washoe County and the governmental units to which Washoe County distributes property taxes it collects. The dispute arose because, in a series of previous cases, Washoe County was ordered to refund excessive property tax payments to property owners in Incline Village and Crystal Bay because the taxes were based upon improper appraisals. Washoe County withheld a pro rata share of the amounts it needed to refund, plus interest, from distributions made to its taxing units, including petitioner the North Lake Tahoe Fire Protection District (the “FPD”). The FPD petitioned for mandamus, arguing that Washoe County exceeded its authority when it withheld payments. After reviewing Nevada’s political question jurisprudence, the Court expressly adopted the factors from the United States Supreme Court’s decision in Baker v. Carr, 369 U.S. 186 (1962), to help determine if a case presents a political question inappropriate for judicial review. Concluding that the Washoe County Commissioner’s had discretion to make a policy decision regarding the tax refund liability, the Court determined that the Commissioner’s decision presented an issue that had no judicially discoverable or manageable standards for resolution and was impossible to decide without an initial policy determination of the type not suited to the courts. As such, the Court held that the writ petition presented a political question inappropriate for judicial review and denied the writ. Petition denied. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
Markowitz v. Saxon Special Servicing, 129 Nev. Adv. Op. 69 (Oct. 3, 2013)
Before the Court en banc. Opinion per curiam.
In this appeal, the Court addressed the requirement of Nevada Foreclosure Mediation Program Rule 8(3)-(4) (now renumbered as Rule 11) that a deed-trust beneficiary provide an appraisal or broker’s price opinion prepared “no more than 60 days before the commencement date of the mediation,” and the authority of a servicer to attend mediation on behalf of the beneficiary of the deed of trust. In this case, the Markowitzes elected to attend mediation; Saxon Special Servicing (“Saxon”), the servicer for the deed-trust beneficiary, represented the beneficiary at mediation. Saxon provided an 83-day-old broker’s price opinion (BPO). The Markowitzes petitioned for judicial review of the mediator’s decision to issue a certificate allowing for foreclosure, arguing that Saxon failed to strictly comply with the BPO requirement and was not authorized to mediate on behalf of the beneficiary. On review, the District Court refused to withhold the certificate, finding that neither party acted in bad faith. The Markowitzes appealed. On appeal, the Court determined that a deed-trust beneficiary must strictly comply with the requirement to produce a BPO, but that substantial compliance could satisfy the content-based rule regarding the age of the BPO. As such, the Court held that without a demonstration of prejudice to the Markowitzes from the 83-day-old appraisal, Saxon substantially complied with the rule. Additionally, the Court held that a servicer can validly represent a beneficiary at foreclosure mediation. Affirmed. (David Stoft, Associate in the Las Vegas office of McDonald Carano Wilson.)
In this appeal, the Court addressed the requirement of Nevada Foreclosure Mediation Program Rule 8(3)-(4) (now renumbered as Rule 11) that a deed-trust beneficiary provide an appraisal or broker’s price opinion prepared “no more than 60 days before the commencement date of the mediation,” and the authority of a servicer to attend mediation on behalf of the beneficiary of the deed of trust. In this case, the Markowitzes elected to attend mediation; Saxon Special Servicing (“Saxon”), the servicer for the deed-trust beneficiary, represented the beneficiary at mediation. Saxon provided an 83-day-old broker’s price opinion (BPO). The Markowitzes petitioned for judicial review of the mediator’s decision to issue a certificate allowing for foreclosure, arguing that Saxon failed to strictly comply with the BPO requirement and was not authorized to mediate on behalf of the beneficiary. On review, the District Court refused to withhold the certificate, finding that neither party acted in bad faith. The Markowitzes appealed. On appeal, the Court determined that a deed-trust beneficiary must strictly comply with the requirement to produce a BPO, but that substantial compliance could satisfy the content-based rule regarding the age of the BPO. As such, the Court held that without a demonstration of prejudice to the Markowitzes from the 83-day-old appraisal, Saxon substantially complied with the rule. Additionally, the Court held that a servicer can validly represent a beneficiary at foreclosure mediation. Affirmed. (David Stoft, Associate in the Las Vegas office of McDonald Carano Wilson.)
St. Mary v. Damon, 129 Nev. Adv. Op. 68 (Oct. 3, 2013)
Before the Court en banc. Opinion by Justice Saitta.
In this opinion, the Court considered issues relating to the custodial rights over a minor child born to two women who were formerly romantic partners. St. Mary gave birth to a child through in vitro fertilization using Damon’s egg and an anonymous donor’s sperm, and the child’s birth certificate originally listed only St. Mary as the mother; in 2009 Damon obtained an order establishing her maternity and adding her name to the child’s birth certificate. The couple also entered into a co-parenting agreement to share parental responsibilities, participate in child-rearing decisions, and pay for expenses. After St. Mary and Damon split, a dispute arose over St. Mary’s right to custody, visitation and child support. Damon contended that due to her biological connection, she was entitled to sole custody of the child, and in support of this contention, submitted the 2009 order. The Court held that the district court erred in using the 2009 order to conclude that St. Mary was a surrogate lacking any right to parent the child without giving St. Mary an evidentiary hearing. The Court reasoned that the Nevada Parentage Act permits a child to have two legal mothers, and establishes (through both the maternity and paternity provisions) various ways to determine a child’s legal mother. The Court remanded the case with instructions to the district court to conduct an evidentiary hearing on St. Mary’s legal right to parent the child. The Court further held that the co-parenting agreement was not void as unlawful or against public policy, indeed the Court stated that barring the enforceability of a co-parenting agreement simply because the parents were both of the same gender was contrary to the public policy of promoting a child’s best interest with the support of two parents. The Court held that the district court must consider the co-parenting agreement in determining custody should it determine after remand that both St. Mary and Damon are the child’s legal parents. Reversed and remanded for further proceedings. (Megan Starich, Associate in the Reno office of McDonald Carano Wilson.)
In this opinion, the Court considered issues relating to the custodial rights over a minor child born to two women who were formerly romantic partners. St. Mary gave birth to a child through in vitro fertilization using Damon’s egg and an anonymous donor’s sperm, and the child’s birth certificate originally listed only St. Mary as the mother; in 2009 Damon obtained an order establishing her maternity and adding her name to the child’s birth certificate. The couple also entered into a co-parenting agreement to share parental responsibilities, participate in child-rearing decisions, and pay for expenses. After St. Mary and Damon split, a dispute arose over St. Mary’s right to custody, visitation and child support. Damon contended that due to her biological connection, she was entitled to sole custody of the child, and in support of this contention, submitted the 2009 order. The Court held that the district court erred in using the 2009 order to conclude that St. Mary was a surrogate lacking any right to parent the child without giving St. Mary an evidentiary hearing. The Court reasoned that the Nevada Parentage Act permits a child to have two legal mothers, and establishes (through both the maternity and paternity provisions) various ways to determine a child’s legal mother. The Court remanded the case with instructions to the district court to conduct an evidentiary hearing on St. Mary’s legal right to parent the child. The Court further held that the co-parenting agreement was not void as unlawful or against public policy, indeed the Court stated that barring the enforceability of a co-parenting agreement simply because the parents were both of the same gender was contrary to the public policy of promoting a child’s best interest with the support of two parents. The Court held that the district court must consider the co-parenting agreement in determining custody should it determine after remand that both St. Mary and Damon are the child’s legal parents. Reversed and remanded for further proceedings. (Megan Starich, Associate in the Reno office of McDonald Carano Wilson.)
Newmar Corp. v. McCrary, 129 Nev. Adv. Op. 67 (Oct. 3, 2013)
Before the Court en banc (Chief Justice Pickering recused). Opinion by Justice Cherry.
In this appeal, the Nevada Supreme Court considered issues arising from a buyer’s revocation of a purchase of a motor home. The Court addressed three issues on appeal: (1) whether the Uniform Commercial Code (UCC) and NRS 104.2608 permit the buyer to revoke acceptance and recover the purchase price from the motor home’s manufacturer; (2) whether the district court properly awarded incidental and consequential damages; and (3) whether the district court abused its discretion in awarding attorney fees. As to the first issue, the Court recognized a split of authorities as to whether privity is required between the purchaser and manufacturer before revocation is available against the manufacturer and expressed concerns with both positions. Ultimately, the Court held that it did not have to select a preferred approach because, here, the manufacturer made direct representations to the buyer, creating privity. Accordingly, the buyer could seek to revoke acceptance as to the manufacturer. The Court further held that incidental and consequential damages were available to the buyer under NRS 104.2719 because the manufacturer’s failed attempts to repair the motor home deprived the buyer of the benefit of the bargain such that no other remedy was available to her. Finally, the Court held that the district court abused its discretion in awarding attorney fees because such fees were not authorized under NRCP 68(f) and NRS 17.115(4). Affirmed in part. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson.)
In this appeal, the Nevada Supreme Court considered issues arising from a buyer’s revocation of a purchase of a motor home. The Court addressed three issues on appeal: (1) whether the Uniform Commercial Code (UCC) and NRS 104.2608 permit the buyer to revoke acceptance and recover the purchase price from the motor home’s manufacturer; (2) whether the district court properly awarded incidental and consequential damages; and (3) whether the district court abused its discretion in awarding attorney fees. As to the first issue, the Court recognized a split of authorities as to whether privity is required between the purchaser and manufacturer before revocation is available against the manufacturer and expressed concerns with both positions. Ultimately, the Court held that it did not have to select a preferred approach because, here, the manufacturer made direct representations to the buyer, creating privity. Accordingly, the buyer could seek to revoke acceptance as to the manufacturer. The Court further held that incidental and consequential damages were available to the buyer under NRS 104.2719 because the manufacturer’s failed attempts to repair the motor home deprived the buyer of the benefit of the bargain such that no other remedy was available to her. Finally, the Court held that the district court abused its discretion in awarding attorney fees because such fees were not authorized under NRCP 68(f) and NRS 17.115(4). Affirmed in part. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson.)
In re Discipline of Serota, 129 Nev. Adv. Op. 66 (Oct. 3, 2013)
Before the Court en banc. Opinion per curiam.
In this automatic review of a Southern Nevada Disciplinary Board hearing panel’s recommendation that attorney Ronald N. Serota be disbarred from the practice of law in Nevada, the Court concluded that clear and convincing evidence supported the panel’s findings that Serota failed to safekeep his client’s property (Rule of Professional Conduct 1.15), engaged in misconduct (RPC 8.4), and misappropriated approximately $319,000 in funds; the Court ordered Serota’s disbarment. In determining whether disbarment was the proper disciplinary sanction, the Court considered four factors: (1) the duty violated; (2) the lawyer’s mental state; (3) the potential or actual injury caused by the lawyer’s misconduct; and (4) the existence of aggravating or mitigating circumstances. In re Discipline of Lerner, 124 Nev. 1232, 197 P.3d 1067, 1077 (2008). The Court concluded that the conduct was intentional and caused his client actual injury. Aggravating circumstances existed because Serota had a prior disciplinary offense. The Court declined to find Serota’s medical condition or claimed mental disabilities mitigating factors that warranted a reduction in discipline. Disbarment ordered. (Kristen T. Gallagher, Associate in the Las Vegas office of McDonald Carano Wilson LLP.)
In this automatic review of a Southern Nevada Disciplinary Board hearing panel’s recommendation that attorney Ronald N. Serota be disbarred from the practice of law in Nevada, the Court concluded that clear and convincing evidence supported the panel’s findings that Serota failed to safekeep his client’s property (Rule of Professional Conduct 1.15), engaged in misconduct (RPC 8.4), and misappropriated approximately $319,000 in funds; the Court ordered Serota’s disbarment. In determining whether disbarment was the proper disciplinary sanction, the Court considered four factors: (1) the duty violated; (2) the lawyer’s mental state; (3) the potential or actual injury caused by the lawyer’s misconduct; and (4) the existence of aggravating or mitigating circumstances. In re Discipline of Lerner, 124 Nev. 1232, 197 P.3d 1067, 1077 (2008). The Court concluded that the conduct was intentional and caused his client actual injury. Aggravating circumstances existed because Serota had a prior disciplinary offense. The Court declined to find Serota’s medical condition or claimed mental disabilities mitigating factors that warranted a reduction in discipline. Disbarment ordered. (Kristen T. Gallagher, Associate in the Las Vegas office of McDonald Carano Wilson LLP.)
Thursday, September 19, 2013
Vanguard Piping v. Eighth Jud. Dist. Ct., 129 Nev. Adv. Op. 63 (Sept. 19, 2013)
Before the Court en banc (Justice Parraguirre recused). Opinion by Justice Hardesty.
In this original petition for writ of mandamus or prohibition, petitioners Vanguard Piping Systems, Inc., Viega, LLC, Industries, Inc., and Viega, Inc. (collectively, Vanguard) challenged a district court order compelling Vanguard to produce all insurance policies that might be used to satisfy a judgment against Vanguard in a construction defect action brought by Aventine-Tramonti Homeowners Association (the HOA). Vanguard contended that it was not required to disclose insurance policies purchased by its German parent companies, Viega GmbH and Viega International GmbH, because Vanguard’s primary insurance policies were sufficient to cover any judgment that might be entered against Vanguard. Following the plain language of the rule and applying the federal courts’ interpretation of the similar federal rule, the Court held that NRCP 16.1(a)(1)(D) requires parties to disclose any insurance agreement that may be used to satisfy a judgment; “[t]he rule does not mention agreements with policy limits sufficient to satisfy a judgment, nor does it distinguish between primary and secondary insurance policies.” Moreover, permitting parties to determine which insurance agreements are relevant “overlooks the fact that it is impossible to foresee all possible circumstances in which the primary insurance policies will be subject to liability and potentially exhausted by other judgments.” Thus, pursuant to NRCP 16.1(a)(1)(D), a party is required to disclose all insurance policies that may be liable to pay a portion of a judgment, regardless of whether it has already disclosed policies with limits that exceed its potential liability. Petition denied. (Patrick J. Murch, Associate in the Las Vegas office of McDonald Carano Wilson.)
In this original petition for writ of mandamus or prohibition, petitioners Vanguard Piping Systems, Inc., Viega, LLC, Industries, Inc., and Viega, Inc. (collectively, Vanguard) challenged a district court order compelling Vanguard to produce all insurance policies that might be used to satisfy a judgment against Vanguard in a construction defect action brought by Aventine-Tramonti Homeowners Association (the HOA). Vanguard contended that it was not required to disclose insurance policies purchased by its German parent companies, Viega GmbH and Viega International GmbH, because Vanguard’s primary insurance policies were sufficient to cover any judgment that might be entered against Vanguard. Following the plain language of the rule and applying the federal courts’ interpretation of the similar federal rule, the Court held that NRCP 16.1(a)(1)(D) requires parties to disclose any insurance agreement that may be used to satisfy a judgment; “[t]he rule does not mention agreements with policy limits sufficient to satisfy a judgment, nor does it distinguish between primary and secondary insurance policies.” Moreover, permitting parties to determine which insurance agreements are relevant “overlooks the fact that it is impossible to foresee all possible circumstances in which the primary insurance policies will be subject to liability and potentially exhausted by other judgments.” Thus, pursuant to NRCP 16.1(a)(1)(D), a party is required to disclose all insurance policies that may be liable to pay a portion of a judgment, regardless of whether it has already disclosed policies with limits that exceed its potential liability. Petition denied. (Patrick J. Murch, Associate in the Las Vegas office of McDonald Carano Wilson.)
Loeb v. First Jud. Dist. Ct., 129 Nev. Adv. Op. 62 (Sept. 19, 2013)
Before the Court en banc. Opinion by Justice Hardesty.
In this petition for writ of mandamus, the Court addressed whether a party residing outside of the United States whose foreign address is known may be served by publication pursuant to NRCP 4(e)(1)(i) and (iii), rather than pursuant to the terms of the Hague Service Convention. NRCP 4 permits service upon a defendant who resides outside the state by publishing the summons in a Nevada newspaper and mailing a copy of the summons and complaint to the defendant’s residence, if it is known. The Hague Convention, on the other hand, mandates that a party in a foreign country be served either through the central authority of the receiving country, through diplomatic or consular agents that the receiving country considers non-objectionable, or by any method permitted by internal law of the receiving country. Under United States Supreme Court case law, the Hague Convention applies if the state’s service rules require “the transmittal of documents abroad” in order for service to be deemed complete. If the Hague Convention applies, its requirements preempt any inconsistent state law methods of service. Because Petitioners knew the foreign addresses of Real Parties in Interest, Petitioners were required to mail them the documents under NRCP 4(e)(1)(iii). The Court found that under the plain language of NRCP 4(e)(1)(iii), this act constitutes “the transmittal of documents abroad,” triggering the requirements of the Hague Convention. Consequently, the Court held, Petitioners were required to serve Real Parties in Interest pursuant to the requirements of the Hague Convention. Petition denied. (Jeff S. Riesenmy, Associate in the Las Vegas office of McDonald Carano Wilson.)
Congratulations to Matt Addison for his win for the real parties in interest!
In this petition for writ of mandamus, the Court addressed whether a party residing outside of the United States whose foreign address is known may be served by publication pursuant to NRCP 4(e)(1)(i) and (iii), rather than pursuant to the terms of the Hague Service Convention. NRCP 4 permits service upon a defendant who resides outside the state by publishing the summons in a Nevada newspaper and mailing a copy of the summons and complaint to the defendant’s residence, if it is known. The Hague Convention, on the other hand, mandates that a party in a foreign country be served either through the central authority of the receiving country, through diplomatic or consular agents that the receiving country considers non-objectionable, or by any method permitted by internal law of the receiving country. Under United States Supreme Court case law, the Hague Convention applies if the state’s service rules require “the transmittal of documents abroad” in order for service to be deemed complete. If the Hague Convention applies, its requirements preempt any inconsistent state law methods of service. Because Petitioners knew the foreign addresses of Real Parties in Interest, Petitioners were required to mail them the documents under NRCP 4(e)(1)(iii). The Court found that under the plain language of NRCP 4(e)(1)(iii), this act constitutes “the transmittal of documents abroad,” triggering the requirements of the Hague Convention. Consequently, the Court held, Petitioners were required to serve Real Parties in Interest pursuant to the requirements of the Hague Convention. Petition denied. (Jeff S. Riesenmy, Associate in the Las Vegas office of McDonald Carano Wilson.)
Congratulations to Matt Addison for his win for the real parties in interest!
State of Nevada v. Tatalovich, 129 Nev. Adv. Op. 61 (Sept. 19, 2013)
Before the Court en banc. Opinion by Chief Justice Pickering.
In this opinion, the Court considered whether services performed for the purposes of developing and providing expert opinion testimony in a civil case required a private investigator’s license under NRS 648.060. Appellant, State of Nevada Private Investigator’s Licensing Board (the “Board”) cited Respondents for engaging in the business of a private investigator without a Nevada license. Dwayne Tatalovich was hired as an expert witness and in preparation for such testimony, performed several functions which, as the Board asserted, constituted activities of a private investigator. The Court explained that, in Nevada, a person engaging in the business of a private investigator (as defined by NRS 648.012) must obtain a license to do so; however, the Court noted that such licensing restrictions exist to protect the public from unqualified individuals who lack the skills necessary to perform the tasks of professionals in that field. Furthermore, the Court emphasized, such policies are not served by applying the licensing requirements to experts whose credibility and qualifications are tested in court and subject to a separate set of rules. As such, the Court determined that the licensing scheme set forth in NRS 648.060 was never intended to encompass the conduct of expert witnesses performing tasks in preparation for testimony before a court. Importantly, the Court highlighted that, after the Respondents were cited by the Board, the Legislature amended the language of NRS 648.012 to specifically exempt expert witnesses from the licensing requirements of NRS 648.060. Thus, the Court concluded that expert witnesses are not required to obtain licenses to perform investigative work in preparation for developing and giving expert opinion testimony. Affirmed. (Amanda Perach, Associate in the Las Vegas office of McDonald Carano Wilson.)
In this opinion, the Court considered whether services performed for the purposes of developing and providing expert opinion testimony in a civil case required a private investigator’s license under NRS 648.060. Appellant, State of Nevada Private Investigator’s Licensing Board (the “Board”) cited Respondents for engaging in the business of a private investigator without a Nevada license. Dwayne Tatalovich was hired as an expert witness and in preparation for such testimony, performed several functions which, as the Board asserted, constituted activities of a private investigator. The Court explained that, in Nevada, a person engaging in the business of a private investigator (as defined by NRS 648.012) must obtain a license to do so; however, the Court noted that such licensing restrictions exist to protect the public from unqualified individuals who lack the skills necessary to perform the tasks of professionals in that field. Furthermore, the Court emphasized, such policies are not served by applying the licensing requirements to experts whose credibility and qualifications are tested in court and subject to a separate set of rules. As such, the Court determined that the licensing scheme set forth in NRS 648.060 was never intended to encompass the conduct of expert witnesses performing tasks in preparation for testimony before a court. Importantly, the Court highlighted that, after the Respondents were cited by the Board, the Legislature amended the language of NRS 648.012 to specifically exempt expert witnesses from the licensing requirements of NRS 648.060. Thus, the Court concluded that expert witnesses are not required to obtain licenses to perform investigative work in preparation for developing and giving expert opinion testimony. Affirmed. (Amanda Perach, Associate in the Las Vegas office of McDonald Carano Wilson.)
Thursday, August 29, 2013
Bradford v. Eighth Jud. Dist. Ct., 129 Nev. Adv. Op. 60 (Aug. 29, 2013)
Before Chief Justice Pickering and Justices Hardesty and Saitta. Opinion by Justice Hardesty.
In this original petition for a writ of mandamus or prohibition challenging the district court’s order dismissing a divorce complaint, the Court considered whether Petitioner’s failure to appeal the dismissal order precluded writ relief in the matter. Petitioner and Real Party in Interest were married in 2008; a newly elected judge who had taken his oath of office but was not authorized to take office until two weeks later performed the marriage ceremony. Three years later, Petitioner filed for divorce from the Real Party in Interest, seeking custody of the couple’s minor child. At the divorce hearing, the district court sua sponte raised the issue of whether the newly elected judge had authority to solemnize the marriage. The court concluded the judge did not have such authority and thus ruled the parties were not legally married, dismissing the divorce complaint as moot. Although proceedings to determine custody of the parties’ child continued in a separate custody case after the district court entered the dismissal order, Petitioner did not appeal the dismissal order and failed to seek any other relief until a year later, when she sought writ relief from the Nevada Supreme Court. The Nevada Supreme Court, in noting the long-held rule that the right to appeal is an adequate legal remedy precluding consideration of a writ appeal, rejected Petitioner’s argument that the dismissal order was not appealable as a valid, final judgment because the district court had reached an erroneous legal conclusion. Although the Nevada Supreme Court noted that the district court’s conclusion may have been in error, it affirmed that an incorrect legal conclusion does not render a judgment invalid or void, and so the district court’s dismissal order was a valid, final judgment. Petitioner had an adequate legal remedy by appealing the dismissal order. Because she failed to do so, writ relief was no longer available to her. 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 challenging the district court’s order dismissing a divorce complaint, the Court considered whether Petitioner’s failure to appeal the dismissal order precluded writ relief in the matter. Petitioner and Real Party in Interest were married in 2008; a newly elected judge who had taken his oath of office but was not authorized to take office until two weeks later performed the marriage ceremony. Three years later, Petitioner filed for divorce from the Real Party in Interest, seeking custody of the couple’s minor child. At the divorce hearing, the district court sua sponte raised the issue of whether the newly elected judge had authority to solemnize the marriage. The court concluded the judge did not have such authority and thus ruled the parties were not legally married, dismissing the divorce complaint as moot. Although proceedings to determine custody of the parties’ child continued in a separate custody case after the district court entered the dismissal order, Petitioner did not appeal the dismissal order and failed to seek any other relief until a year later, when she sought writ relief from the Nevada Supreme Court. The Nevada Supreme Court, in noting the long-held rule that the right to appeal is an adequate legal remedy precluding consideration of a writ appeal, rejected Petitioner’s argument that the dismissal order was not appealable as a valid, final judgment because the district court had reached an erroneous legal conclusion. Although the Nevada Supreme Court noted that the district court’s conclusion may have been in error, it affirmed that an incorrect legal conclusion does not render a judgment invalid or void, and so the district court’s dismissal order was a valid, final judgment. Petitioner had an adequate legal remedy by appealing the dismissal order. Because she failed to do so, writ relief was no longer available to her. Writ denied. (Rory T. Kay, Associate in the Las Vegas office of McDonald Carano Wilson LLP.)
Thursday, August 1, 2013
Khan v. Bakhsh, 129 Nev. Adv. Op. 57 (Aug. 1, 2013)
Before Justices Hardesty, Parraguirre, and Cherry. Opinion by Justice Cherry.
In this appeal from judgment after a bench trial, the Court considered several evidentiary issues dealing with contracts for the sale of real property. First, the Court addressed whether evidence of the terms of an agreement for the sale of property that was written but had been lost or destroyed could be considered without violating the statute of frauds. The Court held that evidence of the existence and terms of the agreement should have been admitted because the statute of frauds was satisfied by the original writing even if that writing was lost or destroyed before trial. Second, the Court addressed the argument that the parol evidence rule barred testimony regarding the fraud used to induce an agreement and testimony regarding the existence of the lost or destroyed agreement. The Court determined that the parol evidence rule does not bar consideration of evidence regarding fraud in the inducement of a contract, to establish subsequent alteration of a contract, or to prove the existence or terms of a written but lost or destroyed agreement. Finally, the Court determined that a liquidated damages provision requiring payment of “150% of actual damages” was an unenforceable penalty. Reversed and remanded. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
In this appeal from judgment after a bench trial, the Court considered several evidentiary issues dealing with contracts for the sale of real property. First, the Court addressed whether evidence of the terms of an agreement for the sale of property that was written but had been lost or destroyed could be considered without violating the statute of frauds. The Court held that evidence of the existence and terms of the agreement should have been admitted because the statute of frauds was satisfied by the original writing even if that writing was lost or destroyed before trial. Second, the Court addressed the argument that the parol evidence rule barred testimony regarding the fraud used to induce an agreement and testimony regarding the existence of the lost or destroyed agreement. The Court determined that the parol evidence rule does not bar consideration of evidence regarding fraud in the inducement of a contract, to establish subsequent alteration of a contract, or to prove the existence or terms of a written but lost or destroyed agreement. Finally, the Court determined that a liquidated damages provision requiring payment of “150% of actual damages” was an unenforceable penalty. Reversed and remanded. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
Moon v. McDonald, Carano & Wilson, L.L.P., 129 Nev. Adv. Op. 56 (Aug. 1, 2013)
Before Chief Justice Pickering and Justices Hardesty and Saitta. Opinion by Justice Hardesty.
In this appeal, the Court considered whether an attorney’s alleged negligence in representing a creditor in the non-adversarial parts of a bankruptcy proceeding constitutes litigation malpractice causing the Hewitt v. Allen, 118 Nev. 216, 43 P.3d 345 (2002) rule to toll the statute of limitations for a professional malpractice claim. Generally a claim for professional malpractice against a lawyer must be brought within two years of discovery of the cause of action. The litigation tolling rule set forth in Hewitt provides that the statutory limitation period for a claim of legal malpractice involving the representation of a client during litigation does not commence until the underlying litigation is concluded. Thus, in the context of litigation malpractice, damages do not begin to accrue until the underlying legal action has been resolved, and the malpractice action does not accrue while an appeal from the adverse ruling is pending. Whether the Hewitt rule applied to bankruptcy proceedings was a question of first impression for Nevada. Relying on the reasoning in an Arizona case, Cannon v. Hirsch Law Office, P.C., 213 P.3d 320 (Ariz. Ct. App. 2009), the Court held that because no complaint was filed in the bankruptcy proceeding, by definition, the proceedings were non-adversarial, did not occur in the “course of litigation,” and did not cause the Hewitt litigation tolling rule to apply. Accordingly, the Court found that the district court was correct in granting the attorney’s motion to dismiss pursuant to the discovery rule articulated in NRS 11.207(1). In addition, the Court held that because it was undisputed by the parties that the attorney only represented appellants in the bankruptcy action from July 2002 to February 2003, any professional malpractice claim would therefore not be tolled by the litigation malpractice tolling rule after February 2003, even if the Court were to conclude that the bankruptcy proceeding in this case qualified as litigation. Affirmed. (Amanda C. Yen, Associate in the Las Vegas office of McDonald Carano Wilson.)
In this appeal, the Court considered whether an attorney’s alleged negligence in representing a creditor in the non-adversarial parts of a bankruptcy proceeding constitutes litigation malpractice causing the Hewitt v. Allen, 118 Nev. 216, 43 P.3d 345 (2002) rule to toll the statute of limitations for a professional malpractice claim. Generally a claim for professional malpractice against a lawyer must be brought within two years of discovery of the cause of action. The litigation tolling rule set forth in Hewitt provides that the statutory limitation period for a claim of legal malpractice involving the representation of a client during litigation does not commence until the underlying litigation is concluded. Thus, in the context of litigation malpractice, damages do not begin to accrue until the underlying legal action has been resolved, and the malpractice action does not accrue while an appeal from the adverse ruling is pending. Whether the Hewitt rule applied to bankruptcy proceedings was a question of first impression for Nevada. Relying on the reasoning in an Arizona case, Cannon v. Hirsch Law Office, P.C., 213 P.3d 320 (Ariz. Ct. App. 2009), the Court held that because no complaint was filed in the bankruptcy proceeding, by definition, the proceedings were non-adversarial, did not occur in the “course of litigation,” and did not cause the Hewitt litigation tolling rule to apply. Accordingly, the Court found that the district court was correct in granting the attorney’s motion to dismiss pursuant to the discovery rule articulated in NRS 11.207(1). In addition, the Court held that because it was undisputed by the parties that the attorney only represented appellants in the bankruptcy action from July 2002 to February 2003, any professional malpractice claim would therefore not be tolled by the litigation malpractice tolling rule after February 2003, even if the Court were to conclude that the bankruptcy proceeding in this case qualified as litigation. Affirmed. (Amanda C. Yen, Associate in the Las Vegas office of McDonald Carano Wilson.)
Thursday, July 11, 2013
Leventhal v. Black & LoBello, 129 Nev. Adv. Op. 50 (July 11, 2013)
Before Chief Justice Pickering, and Justices Hardesty and Saitta. Opinion by Chief Justice Pickering.
In this appeal from a district court order adjudicating a law firm’s charging lien for attorneys’ fees against its former client under pre-2013 NRS 18.015, the Court considered whether the lien should have been adjudicated when the law firm did not serve the statutory notices required to perfect its lien until eight months after the case was over and property distributed. The Court held that to assert a charging lien against the client’s claim or recovery under NRS 18.015, four requirements must be met. First, the attorney must have presented a claim for affirmative relief, generally recovery of money or property, on behalf of the client. Second, the attorney must perfect the lien by serving a notice in writing by certified mail, return receipt requested, to the client and upon the opposing party whom the client has a cause of action and stating the attorney’s interest in the cause of action. Third, the statute sets a timing requirement that once perfected the lien attaches to a verdict, judgment or decree entered and to any money or property which is recovered on account of the suit or other action, from the time of service of the notices required by this section. Fourth, the attorney must timely file and properly serve a motion to adjudicate the lien. Here, because LoBello failed to perfect its lien until eight months after a stipulated divorce decree was entered and the property was distributed – well after the time a lien could have attached to any of the property governed by that settlement – and because the settlement of a later custody dispute did not modify the property distribution in the divorce decree or otherwise bring that property back into dispute, there was no property to which LoBello’ s lien could attach. Since there were no “tangible fruits” upon which the lien could attach at the time the lien was served, the district court should not have adjudicated the lien under NRS 18.015(4). Reversed. (Lisa M. Wiltshire Alstead, Associate in the Reno office of McDonald Carano Wilson).
In this appeal from a district court order adjudicating a law firm’s charging lien for attorneys’ fees against its former client under pre-2013 NRS 18.015, the Court considered whether the lien should have been adjudicated when the law firm did not serve the statutory notices required to perfect its lien until eight months after the case was over and property distributed. The Court held that to assert a charging lien against the client’s claim or recovery under NRS 18.015, four requirements must be met. First, the attorney must have presented a claim for affirmative relief, generally recovery of money or property, on behalf of the client. Second, the attorney must perfect the lien by serving a notice in writing by certified mail, return receipt requested, to the client and upon the opposing party whom the client has a cause of action and stating the attorney’s interest in the cause of action. Third, the statute sets a timing requirement that once perfected the lien attaches to a verdict, judgment or decree entered and to any money or property which is recovered on account of the suit or other action, from the time of service of the notices required by this section. Fourth, the attorney must timely file and properly serve a motion to adjudicate the lien. Here, because LoBello failed to perfect its lien until eight months after a stipulated divorce decree was entered and the property was distributed – well after the time a lien could have attached to any of the property governed by that settlement – and because the settlement of a later custody dispute did not modify the property distribution in the divorce decree or otherwise bring that property back into dispute, there was no property to which LoBello’ s lien could attach. Since there were no “tangible fruits” upon which the lien could attach at the time the lien was served, the district court should not have adjudicated the lien under NRS 18.015(4). Reversed. (Lisa M. Wiltshire Alstead, Associate in the Reno office of McDonald Carano Wilson).
Bielar v. Washoe Health Sys., Inc., 129 Nev. Adv. Op. 49 (July 11, 2013)
Before Chief Justice Pickering and Justices Hardesty and Saitta. Opinion by Justice Hardesty.
In this case, the Court was called upon to interpret Nevada’s pre-2011 charitable health care statue, NRS 439B.260, which requires hospitals to offer at least a thirty percent discount to patients receiving inpatient care who meet certain criteria. Among the eligibility criteria is a requirement that the patient not have health insurance or “other contractual provision for the payment of the charge by a third party.” Appellant Bielar received treatment for injuries due to a car accident and obtained a $1.3 million settlement from the party responsible for her injuries. Washoe Medical, the health center that provided treatment, sought payment of the full amounts of treatment billed and Bielar challenged, arguing that the amounts billed were unreasonable and she was entitled to a thirty percent discount under NRS 439B.260. In the primary issue on appeal, the Court determined that the settlement agreement did not prevent Bielar from qualifying for the thirty-percent discount, holding that a “patient's eligibility for the 30-percent discount is determined at the time of the rendition of the hospital services and a later agreement with a third-party tortfeasor for claims arising out of such services” would not bar application of the discount. Additionally, the Court held that a settlement agreement is not an agreement for the payment of medical charges under the language of the statute even if a portion of the settlement agreement is designated for medical expenses. The Court noted that the 2011 revisions to NRS 439B.260 were consistent with its interpretation. Having agreed with Bielar on the legal issues, the Court reversed the grant of summary judgment on Bielar’s claims for the discount; however, the Court affirmed the district court’s grant of judgment as a matter of law on Bielar’s claims that the charges were unreasonable, concluding that Bielar failed to carry her burden of proof. Reversed in part and remanded. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
In this case, the Court was called upon to interpret Nevada’s pre-2011 charitable health care statue, NRS 439B.260, which requires hospitals to offer at least a thirty percent discount to patients receiving inpatient care who meet certain criteria. Among the eligibility criteria is a requirement that the patient not have health insurance or “other contractual provision for the payment of the charge by a third party.” Appellant Bielar received treatment for injuries due to a car accident and obtained a $1.3 million settlement from the party responsible for her injuries. Washoe Medical, the health center that provided treatment, sought payment of the full amounts of treatment billed and Bielar challenged, arguing that the amounts billed were unreasonable and she was entitled to a thirty percent discount under NRS 439B.260. In the primary issue on appeal, the Court determined that the settlement agreement did not prevent Bielar from qualifying for the thirty-percent discount, holding that a “patient's eligibility for the 30-percent discount is determined at the time of the rendition of the hospital services and a later agreement with a third-party tortfeasor for claims arising out of such services” would not bar application of the discount. Additionally, the Court held that a settlement agreement is not an agreement for the payment of medical charges under the language of the statute even if a portion of the settlement agreement is designated for medical expenses. The Court noted that the 2011 revisions to NRS 439B.260 were consistent with its interpretation. Having agreed with Bielar on the legal issues, the Court reversed the grant of summary judgment on Bielar’s claims for the discount; however, the Court affirmed the district court’s grant of judgment as a matter of law on Bielar’s claims that the charges were unreasonable, concluding that Bielar failed to carry her burden of proof. Reversed in part and remanded. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
Wednesday, July 3, 2013
Nevada Power Co. v. 3 Kids, L.L.C., 129 Nev. Adv. Op. 47 (July 3, 2013, opinion modified by Court order July 24, 2013)
Before the Court en banc (Chief Justice Pickering recused). Opinion by Justice Gibbons.
In this opinion, the Court held that a jury instruction based on an overbroad reading of its decision in City of North Las Vegas v. Robinson, 122 Nev. 527, 134 P.3d 705 (2006) was not prejudicial because a separate jury instruction remedied the error. The action at district court was a jury trial regarding the just compensation for a taking by Appellant of a portion of Respondent's property for a utility easement. The jury was instructed to disregard the existence of a setback along the northernmost 20 feet of the subject property for purposes of calculating the value of the property. Appellant objected to this instruction, but the district court overruled the objection based on Respondent's argument that the Robinson decision, which addressed the applicability of a property's highest and best use in the calculation of value, was broad enough to encompass the instruction. The Court held that the instruction to disregard the setback was beyond the scope of Robinson because setbacks are appropriate for a jury to consider in discounting value. However, the Court also held that a separate, more thorough instruction alleviated the error by correctly interpreting Robinson, and therefore that there was no prejudice to Appellant caused by the erroneous instruction. Additionally, the jury's verdict was supported by substantial evidence. The Court offered a sample jury instruction for cases where a jury must determine just compensation for a property burdened by a use restriction without disregarding its highest and best use. A second issue before the Court was whether the district court abused its discretion by allowing testimony from Respondent's expert. The Court determined that the alleged weaknesses in the expert report went to the weight of the evidence and not its admissibility. The Court observed that Appellant had ample opportunity to address these weaknesses and therefore that the district court did not abuse its discretion by allowing the testimony. Appellant's argument that the expert's analysis violated NRS 50.285 was likewise unfounded because the statute does not define the type of documentation or data upon which an expert may rely. Affirmed. (Mark W. Dunagan, Associate in the Reno office of McDonald Carano Wilson LLP.)
In this opinion, the Court held that a jury instruction based on an overbroad reading of its decision in City of North Las Vegas v. Robinson, 122 Nev. 527, 134 P.3d 705 (2006) was not prejudicial because a separate jury instruction remedied the error. The action at district court was a jury trial regarding the just compensation for a taking by Appellant of a portion of Respondent's property for a utility easement. The jury was instructed to disregard the existence of a setback along the northernmost 20 feet of the subject property for purposes of calculating the value of the property. Appellant objected to this instruction, but the district court overruled the objection based on Respondent's argument that the Robinson decision, which addressed the applicability of a property's highest and best use in the calculation of value, was broad enough to encompass the instruction. The Court held that the instruction to disregard the setback was beyond the scope of Robinson because setbacks are appropriate for a jury to consider in discounting value. However, the Court also held that a separate, more thorough instruction alleviated the error by correctly interpreting Robinson, and therefore that there was no prejudice to Appellant caused by the erroneous instruction. Additionally, the jury's verdict was supported by substantial evidence. The Court offered a sample jury instruction for cases where a jury must determine just compensation for a property burdened by a use restriction without disregarding its highest and best use. A second issue before the Court was whether the district court abused its discretion by allowing testimony from Respondent's expert. The Court determined that the alleged weaknesses in the expert report went to the weight of the evidence and not its admissibility. The Court observed that Appellant had ample opportunity to address these weaknesses and therefore that the district court did not abuse its discretion by allowing the testimony. Appellant's argument that the expert's analysis violated NRS 50.285 was likewise unfounded because the statute does not define the type of documentation or data upon which an expert may rely. Affirmed. (Mark W. Dunagan, Associate in the Reno office of McDonald Carano Wilson LLP.)
Mountain View Rec. v. Imperial Commercial, 129 Nev. Adv. Op. 45 (July 3, 2013)
Before the Court en banc. Opinion by Justice Hardesty.
In this appeal, the Court reviewed whether the district court had abused its discretion by granting a motion to change venue from Nye County to Clark County based on the doctrine of forum non conveniens and a finding that courtroom facilities in Pahrump were inadequate for trial. The motion, filed by one of the defendants, argued that Las Vegas would be more convenient insofar as (1) the majority of pretrial litigation and discovery had taken place in Las Vegas, (2) the physical evidence, special master, and majority of counsel, were located in Las Vegas, (3) experts would have to travel through Las Vegas to get to Pahrump, (4) the majority of plaintiff’s witnesses would not have to travel to Las Vegas from Pahrump, and (5) the transfer would not result in a reassignment of judges insofar as a senior judge had already been assigned. The Court reversed, concluding that the record was insufficient to support the district court’s finding of inconvenience under NRS 13.050 and Eaton v. Second Judicial Dist. Court, 96 Nev. 73, 774-75, 616 P.2d 400, 401 (1980), because respondent had failed to offer any affidavits or evidence establishing the extraordinary circumstances needed to change venue under Eaton. Additionally, the district court failed to recognize the obligation of Nye County under NRS 3.100(2) and Angell v. Eighth Judicial District Court, 108 Nev. 923, 839 P.2d 1329 (1992), to provide adequate facilities for the litigation. Finally, the district court failed to consider and respondents failed to offer evidence concerning the congestion of the Clark County district court’s docket in determining whether it could accommodate the trial if transferred. The Court adopted the rule from Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1337 (9th Cir. 1984) and GeoChem Tech Corp. v. Verseckes, 962 S.W.2d 541, 543 (Tex. 1998), imposing the burden on the movant to demonstrate that a change in venue will result in a speedier resolution of the matter. Reversed and remanded. (David Stoft, Associate in the Las Vegas office of McDonald Carano Wilson.)
In this appeal, the Court reviewed whether the district court had abused its discretion by granting a motion to change venue from Nye County to Clark County based on the doctrine of forum non conveniens and a finding that courtroom facilities in Pahrump were inadequate for trial. The motion, filed by one of the defendants, argued that Las Vegas would be more convenient insofar as (1) the majority of pretrial litigation and discovery had taken place in Las Vegas, (2) the physical evidence, special master, and majority of counsel, were located in Las Vegas, (3) experts would have to travel through Las Vegas to get to Pahrump, (4) the majority of plaintiff’s witnesses would not have to travel to Las Vegas from Pahrump, and (5) the transfer would not result in a reassignment of judges insofar as a senior judge had already been assigned. The Court reversed, concluding that the record was insufficient to support the district court’s finding of inconvenience under NRS 13.050 and Eaton v. Second Judicial Dist. Court, 96 Nev. 73, 774-75, 616 P.2d 400, 401 (1980), because respondent had failed to offer any affidavits or evidence establishing the extraordinary circumstances needed to change venue under Eaton. Additionally, the district court failed to recognize the obligation of Nye County under NRS 3.100(2) and Angell v. Eighth Judicial District Court, 108 Nev. 923, 839 P.2d 1329 (1992), to provide adequate facilities for the litigation. Finally, the district court failed to consider and respondents failed to offer evidence concerning the congestion of the Clark County district court’s docket in determining whether it could accommodate the trial if transferred. The Court adopted the rule from Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1337 (9th Cir. 1984) and GeoChem Tech Corp. v. Verseckes, 962 S.W.2d 541, 543 (Tex. 1998), imposing the burden on the movant to demonstrate that a change in venue will result in a speedier resolution of the matter. Reversed and remanded. (David Stoft, Associate in the Las Vegas office of McDonald Carano Wilson.)
Frei v. Goodsell, 129 Nev. Adv. Op. 43 (July 3, 2013)
Before Justices Hardesty, Parraguirre, and Cherry. Opinion by Justice Parraguirre.
In this appeal from an attorney malpractice action stemming from trust litigation, the appellant raises two unrelated issues stemming from an action to void certain documents that transferred assets among two revocable trusts benefitting the appellant’s and his wife’s children from other marriages. Appellant’s attorney, acting at the instruction of appellant’s agent, who had been appointed as both appellant’s attorney-in-fact and as trustee to appellant’s wife’s trust, prepared certain transfer documents for appellant’s signature. Although the attorney never personally met with appellant, appellant signed the documents, which resulted in the transfer of $1 million of appellant’s assets to his wife’s trust. After his wife’s death, Appellant sought to void the documents and filed a legal malpractice action against his attorney. The first issue concerns whether the district court properly denied a motion in limine to preclude the attorney from arguing that an attorney-client relationship did not exist when the district court had previously determined, in the trust litigation concerning the documents, that such a relationship existed and created a conflict of interest. In resolving this issue, the court applied the four-part issue preclusion test from Five Star Capital Corp. v. Ruby, 124 Nev. 1048, 1052, 194 P.3d 709, 711 (2008), and determined that only the fourth element (whether “the issue was actually and necessarily litigated”) was in dispute. The court concluded that, while the existence of an attorney-client relationship was actually litigated, it was not necessarily litigated. In Nevada, issue preclusion will only apply if a matter was necessary to the prior judgment. Analogizing to a factually similar Massachusetts Supreme Judicial Court decision, the court held that resolving the underlying trust litigation did not depend on whether an attorney-client relationship existed and, therefore, that issue was not necessarily litigated in the trust action and issue preclusion did not apply. The second issue the Court addressed concerned whether the district court properly excluded parol evidence to demonstrate the appellant’s intent in executing the documents that ultimately resulted in the $1 million transfer. Appellant conceded that the documents were unambiguous, but he argued that the documents did not meet his objectives. The Court held that parol evidence is not admissible to demonstrate intent where the language of a document is clear on its face and, therefore, the district court properly excluded the evidence. The Court further reiterated that its statement in Russ v. General Motors Corp., 111 Nev. 1431, 1438-39, 906 P.2d 718, 723 (1995), that a court should consider evidence of intent to determine whether a document is susceptible to interpretation is not the law as it has been discredited in another published opinion as dicta. In a footnote, the Court also stated that it was not clear whether the parol evidence rule should apply at all when a party seeks recovery for legal malpractice and is not seeking to contradict the terms of a document. The Court could not address that that question as it was not properly presented in this appeal. Affirmed. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson).
In this appeal from an attorney malpractice action stemming from trust litigation, the appellant raises two unrelated issues stemming from an action to void certain documents that transferred assets among two revocable trusts benefitting the appellant’s and his wife’s children from other marriages. Appellant’s attorney, acting at the instruction of appellant’s agent, who had been appointed as both appellant’s attorney-in-fact and as trustee to appellant’s wife’s trust, prepared certain transfer documents for appellant’s signature. Although the attorney never personally met with appellant, appellant signed the documents, which resulted in the transfer of $1 million of appellant’s assets to his wife’s trust. After his wife’s death, Appellant sought to void the documents and filed a legal malpractice action against his attorney. The first issue concerns whether the district court properly denied a motion in limine to preclude the attorney from arguing that an attorney-client relationship did not exist when the district court had previously determined, in the trust litigation concerning the documents, that such a relationship existed and created a conflict of interest. In resolving this issue, the court applied the four-part issue preclusion test from Five Star Capital Corp. v. Ruby, 124 Nev. 1048, 1052, 194 P.3d 709, 711 (2008), and determined that only the fourth element (whether “the issue was actually and necessarily litigated”) was in dispute. The court concluded that, while the existence of an attorney-client relationship was actually litigated, it was not necessarily litigated. In Nevada, issue preclusion will only apply if a matter was necessary to the prior judgment. Analogizing to a factually similar Massachusetts Supreme Judicial Court decision, the court held that resolving the underlying trust litigation did not depend on whether an attorney-client relationship existed and, therefore, that issue was not necessarily litigated in the trust action and issue preclusion did not apply. The second issue the Court addressed concerned whether the district court properly excluded parol evidence to demonstrate the appellant’s intent in executing the documents that ultimately resulted in the $1 million transfer. Appellant conceded that the documents were unambiguous, but he argued that the documents did not meet his objectives. The Court held that parol evidence is not admissible to demonstrate intent where the language of a document is clear on its face and, therefore, the district court properly excluded the evidence. The Court further reiterated that its statement in Russ v. General Motors Corp., 111 Nev. 1431, 1438-39, 906 P.2d 718, 723 (1995), that a court should consider evidence of intent to determine whether a document is susceptible to interpretation is not the law as it has been discredited in another published opinion as dicta. In a footnote, the Court also stated that it was not clear whether the parol evidence rule should apply at all when a party seeks recovery for legal malpractice and is not seeking to contradict the terms of a document. The Court could not address that that question as it was not properly presented in this appeal. Affirmed. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson).
Thursday, June 27, 2013
Halcrow, Inc. v. Eighth Jud. Dist. Ct., 129 Nev. Adv. Op. 42 (June 27, 2013)
Before the Court En Banc. Opinion by Justice Saitta.
In this petition for writ of mandamus challenging a district court order granting motions for leave to amend to add claims for negligent misrepresentation against a design professional in the commercial construction context, the Court examined the economic loss doctrine’s applicability to negligent misrepresentation claims. The Court had previously left open the question of whether the economic loss doctrine barred a claim for negligent misrepresentation in Terracon Consultants Western, Inc. v. Mandala Resort Group, 125 Nev. 66, 206 P.3d 81 (2009). The original proceeding in this case stemmed from the construction of the Harmon Tower within CityCenter. The developer, MGM Mirage Design Group (“MGM”), retained an architectural firm and Perini Building Company (“Perini”) as its general contractor. The architectural firm retained the petitioner, Halcrow, to design the Harmon’s structure, and Perini hired Century Steel, Inc. (“Century”) to provide the steel installation, who ultimately assigned its assets to Pacific Coast Steel (“PCS”). Halcrow had no contract with Perini, Century, or PCS. After Perini filed a complaint against the MGM for failing to make timely payments, the MGM filed counterclaims against Perini for alleged reinforcing steel defects and other nonconforming work. Perini then filed a third-party complaint against Century and PCS, who in turn filed their own third and fourth party complaints against Halcrow, among others. Halcrow moved to dismiss Century’s third and fourth party complaints, arguing that Terracon bars unintentional tort claims against design professionals in commercial construction projects when the claimant incurs primarily economic losses. The district court dismissed Century’s and PCS’s claims for negligence, among others, but allowed Century and PCS leave to amend to allege a claim for negligent misrepresentation against Halcrow for allegedly negligently representing to Century and PCS that it would inspect and make on-site adjustments to the steel installation. The Court exercised its discretion to review this writ petition, and examined the economic loss doctrine’s application in Nevada. The Court clarified that there are certain exceptions to the economic loss doctrine where “strong countervailing considerations weigh in favor of imposing liability,” including claims for “defamation, intentionally caused harm, negligent misstatements about financial matters and loss of consortium.” However, the Court reasoned that in the context of commercial construction design professionals, contract law is better suited for resolving such claims. Therefore, the Court held that in commercial construction defect litigation, the economic loss doctrine applies to bar claims against design professionals for negligent misrepresentation where the damages alleged are purely economic. Writ of mandamus granted directing district court to vacate its order granting Century and PCS leave to amend. (Megan Starich, Associate in the Reno office of McDonald Carano Wilson LLP).
In this petition for writ of mandamus challenging a district court order granting motions for leave to amend to add claims for negligent misrepresentation against a design professional in the commercial construction context, the Court examined the economic loss doctrine’s applicability to negligent misrepresentation claims. The Court had previously left open the question of whether the economic loss doctrine barred a claim for negligent misrepresentation in Terracon Consultants Western, Inc. v. Mandala Resort Group, 125 Nev. 66, 206 P.3d 81 (2009). The original proceeding in this case stemmed from the construction of the Harmon Tower within CityCenter. The developer, MGM Mirage Design Group (“MGM”), retained an architectural firm and Perini Building Company (“Perini”) as its general contractor. The architectural firm retained the petitioner, Halcrow, to design the Harmon’s structure, and Perini hired Century Steel, Inc. (“Century”) to provide the steel installation, who ultimately assigned its assets to Pacific Coast Steel (“PCS”). Halcrow had no contract with Perini, Century, or PCS. After Perini filed a complaint against the MGM for failing to make timely payments, the MGM filed counterclaims against Perini for alleged reinforcing steel defects and other nonconforming work. Perini then filed a third-party complaint against Century and PCS, who in turn filed their own third and fourth party complaints against Halcrow, among others. Halcrow moved to dismiss Century’s third and fourth party complaints, arguing that Terracon bars unintentional tort claims against design professionals in commercial construction projects when the claimant incurs primarily economic losses. The district court dismissed Century’s and PCS’s claims for negligence, among others, but allowed Century and PCS leave to amend to allege a claim for negligent misrepresentation against Halcrow for allegedly negligently representing to Century and PCS that it would inspect and make on-site adjustments to the steel installation. The Court exercised its discretion to review this writ petition, and examined the economic loss doctrine’s application in Nevada. The Court clarified that there are certain exceptions to the economic loss doctrine where “strong countervailing considerations weigh in favor of imposing liability,” including claims for “defamation, intentionally caused harm, negligent misstatements about financial matters and loss of consortium.” However, the Court reasoned that in the context of commercial construction design professionals, contract law is better suited for resolving such claims. Therefore, the Court held that in commercial construction defect litigation, the economic loss doctrine applies to bar claims against design professionals for negligent misrepresentation where the damages alleged are purely economic. Writ of mandamus granted directing district court to vacate its order granting Century and PCS leave to amend. (Megan Starich, Associate in the Reno office of McDonald Carano Wilson LLP).
Thursday, June 20, 2013
Williams v. United Parcel Servs., 129 Nev. Adv. Op. 41 (June 6, 2013)
Before Justices Gibbons, Douglas, and Saitta. Opinion by Justice Saitta.
In this appeal from a district court order denying a petition for judicial review in a workers’ compensation action, the Court examined the meaning of “off work” under NRS 616C.390(5). Under NRS 616C.390(5), a claimant either has to be “off work” or has to receive a “permanent partial disability award” to reopen a claim more than one year after the closing date of the claim. Appellant sustained workplace injuries when he fell from a ladder and Appellant’s physician did not clear Appellant to return to work until two days later. Appellant filed a worker’s compensation claim with his employer and received an award that was not a “permanent partial disability award.” After experiencing subsequent back pain, appellant sought to reopen his claim two years after the claim closed. An appeals officer refused to reopen Appellant’s claim because the appeals officer determined that Appellant was never “off work” under NRS 616C.390(5). The appeals officer interpreted “off work” to mean that an employee has to miss at least five days of work as the result of a work injury. The Court first held that failing to apply to reopen a claim within the limitations period set forth in NRS 616C.390(5) acts as a jurisdictional bar to reopening the claim. The Court then held that an employee does not have to miss a certain minimum amount of time from work to be “off work” under NRS 616C.390(5) - an employee only has to lose time from work as the result of a work injury to be “off work” under the statute. Reversed and remanded. (Chris Stanko, Summer Clerk in the Reno office of McDonald Carano Wilson.)
In this appeal from a district court order denying a petition for judicial review in a workers’ compensation action, the Court examined the meaning of “off work” under NRS 616C.390(5). Under NRS 616C.390(5), a claimant either has to be “off work” or has to receive a “permanent partial disability award” to reopen a claim more than one year after the closing date of the claim. Appellant sustained workplace injuries when he fell from a ladder and Appellant’s physician did not clear Appellant to return to work until two days later. Appellant filed a worker’s compensation claim with his employer and received an award that was not a “permanent partial disability award.” After experiencing subsequent back pain, appellant sought to reopen his claim two years after the claim closed. An appeals officer refused to reopen Appellant’s claim because the appeals officer determined that Appellant was never “off work” under NRS 616C.390(5). The appeals officer interpreted “off work” to mean that an employee has to miss at least five days of work as the result of a work injury. The Court first held that failing to apply to reopen a claim within the limitations period set forth in NRS 616C.390(5) acts as a jurisdictional bar to reopening the claim. The Court then held that an employee does not have to miss a certain minimum amount of time from work to be “off work” under NRS 616C.390(5) - an employee only has to lose time from work as the result of a work injury to be “off work” under the statute. Reversed and remanded. (Chris Stanko, Summer Clerk in the Reno office of McDonald Carano Wilson.)
Thursday, June 6, 2013
Bergenfield v. Bank of Am., 129 Nev. Adv. Op. 40 (June 6, 2013)
Before Justices Gibbons, Douglas, and Saitta. Opinion by Justice Douglas.
In this appeal, the Court held that in the context of Nevada’s Foreclosure Mediation Program, when the deed of trust to real property and the promissory note are held by two different entities at the time of mediation, the attendance at the mediation by the holder of a promissory note does not meet the statutory requirement that the deed of trust beneficiary attend and participate in good faith. Appellant obtained a home loan from Countrywide Home Loans, Inc. and executed a promissory note in Countrywide’s favor. The note was secured by a deed of trust naming Mortgage Electronic Registration Systems, Inc. as beneficiary of the deed of trust, who subsequently assigned its interest in the deed of trust to HSBC Bank USA. Countrywide endorsed the promissory note in blank, which meant that the holder of the note would be entitled to payment under the terms of the note. The Appellant defaulted on the loan and elected to participate in the Foreclosure Meditation Program. Bank of America, the acquirer of Countrywide, held the note and, through a representative, attended the mediation. HSBC did not attend at all. The Court held that a party seeking a nonjudicial foreclosure on a deed of trust of an owner-occupied residence must demonstrate that it is the current beneficiary of the deed of trust and the holder of the promissory note. This is because the deed of trust is a lien on the property, but the holder of the promissory note is the party entitled to repayment. Foreclosure under NRS Chapter 107 is only proper when the deed of trust and the promissory note are held by the same party. NRS 107.086(4) requires that the beneficiary of the deed of trust attend the mediation, and the Foreclosure Mediation Program certificate, which ultimately permits the beneficiary to proceed with foreclosure, cannot be issued if the beneficiary fails to attend. The deed of trust and the promissory note, therefore, must be reunified prior to the mediation. Because Bank of America was not the beneficiary of the deed of trust, it was not permitted to nonjudicially foreclose on the property. The Court further issued sanctions against Bank of America for holding itself out as the beneficiary of the deed of trust. Reversed. (Joseph Schrage, Associate in the Las Vegas office of McDonald Carano Wilson LLP.)
In this appeal, the Court held that in the context of Nevada’s Foreclosure Mediation Program, when the deed of trust to real property and the promissory note are held by two different entities at the time of mediation, the attendance at the mediation by the holder of a promissory note does not meet the statutory requirement that the deed of trust beneficiary attend and participate in good faith. Appellant obtained a home loan from Countrywide Home Loans, Inc. and executed a promissory note in Countrywide’s favor. The note was secured by a deed of trust naming Mortgage Electronic Registration Systems, Inc. as beneficiary of the deed of trust, who subsequently assigned its interest in the deed of trust to HSBC Bank USA. Countrywide endorsed the promissory note in blank, which meant that the holder of the note would be entitled to payment under the terms of the note. The Appellant defaulted on the loan and elected to participate in the Foreclosure Meditation Program. Bank of America, the acquirer of Countrywide, held the note and, through a representative, attended the mediation. HSBC did not attend at all. The Court held that a party seeking a nonjudicial foreclosure on a deed of trust of an owner-occupied residence must demonstrate that it is the current beneficiary of the deed of trust and the holder of the promissory note. This is because the deed of trust is a lien on the property, but the holder of the promissory note is the party entitled to repayment. Foreclosure under NRS Chapter 107 is only proper when the deed of trust and the promissory note are held by the same party. NRS 107.086(4) requires that the beneficiary of the deed of trust attend the mediation, and the Foreclosure Mediation Program certificate, which ultimately permits the beneficiary to proceed with foreclosure, cannot be issued if the beneficiary fails to attend. The deed of trust and the promissory note, therefore, must be reunified prior to the mediation. Because Bank of America was not the beneficiary of the deed of trust, it was not permitted to nonjudicially foreclose on the property. The Court further issued sanctions against Bank of America for holding itself out as the beneficiary of the deed of trust. Reversed. (Joseph Schrage, Associate in the Las Vegas office of McDonald Carano Wilson LLP.)
Thursday, May 30, 2013
In re Fox, 129 Nev. Adv. Op. 39 (May 30, 2013)
Before the Court en banc. Opinion by Justice Cherry.
In this opinion, the Court answered the following certified question from the United States Bankruptcy Appellate Panel of the Ninth Circuit: “[i]n Nevada may a judgment debtor claim exemptions under NRS 21.090 belonging not only to herself, but also to her non-debtor spouse?” The Court noted that, under NRS 21.090 (f) and (z), an individual can exempt one vehicle up to $15,000 in value and up to $1,000 in otherwise non-exempt personal property (the wildcard exemption). However, when a married couple files a joint bankruptcy petition, they may collectively exempt two vehicles and up to $2,000 in otherwise non-exempt personal property. In addressing this question, the Court recognized that whenever a married individual files for bankruptcy and his/her spouse does not join the petition, the bankruptcy estate includes all of the marital community property. Given the inclusion of all marital property in an individual debtor’s bankruptcy estate, the question before the Court was whether the debtor spouse is entitled to utilize the non-debtor spouse’s exemptions set forth in NRS 21.090(f) and (z) to allow for a total exemption of two vehicles and up to $2,000 in otherwise non-exempt personal property. In reviewing an Idaho bankruptcy court decision concerning the same issue and the plain language of the statute which refers only to the “judgment debtor’s equity” in such property, the Court concluded that a debtor in bankruptcy may not utilize his/her non-debtor spouse’s exemptions to exempt additional marital property from the estate. Thus, a married debtor whose spouse does not join in the bankruptcy petition may only exempt one vehicle and up to $1,000 in personal property not otherwise exempt. Based on the foregoing, the Court determined that a debtor is limited to one set of exemptions, as set forth in NRS 21.090, and she may not claim the exemptions belonging to her non-debtor spouse notwithstanding the fact that all marital community property is considered property of the estate. Certified question answered in the negative. (Amanda M. Perach, Associate in the Las Vegas office of McDonald Carano Wilson LLP.)
In this opinion, the Court answered the following certified question from the United States Bankruptcy Appellate Panel of the Ninth Circuit: “[i]n Nevada may a judgment debtor claim exemptions under NRS 21.090 belonging not only to herself, but also to her non-debtor spouse?” The Court noted that, under NRS 21.090 (f) and (z), an individual can exempt one vehicle up to $15,000 in value and up to $1,000 in otherwise non-exempt personal property (the wildcard exemption). However, when a married couple files a joint bankruptcy petition, they may collectively exempt two vehicles and up to $2,000 in otherwise non-exempt personal property. In addressing this question, the Court recognized that whenever a married individual files for bankruptcy and his/her spouse does not join the petition, the bankruptcy estate includes all of the marital community property. Given the inclusion of all marital property in an individual debtor’s bankruptcy estate, the question before the Court was whether the debtor spouse is entitled to utilize the non-debtor spouse’s exemptions set forth in NRS 21.090(f) and (z) to allow for a total exemption of two vehicles and up to $2,000 in otherwise non-exempt personal property. In reviewing an Idaho bankruptcy court decision concerning the same issue and the plain language of the statute which refers only to the “judgment debtor’s equity” in such property, the Court concluded that a debtor in bankruptcy may not utilize his/her non-debtor spouse’s exemptions to exempt additional marital property from the estate. Thus, a married debtor whose spouse does not join in the bankruptcy petition may only exempt one vehicle and up to $1,000 in personal property not otherwise exempt. Based on the foregoing, the Court determined that a debtor is limited to one set of exemptions, as set forth in NRS 21.090, and she may not claim the exemptions belonging to her non-debtor spouse notwithstanding the fact that all marital community property is considered property of the estate. Certified question answered in the negative. (Amanda M. Perach, Associate in the Las Vegas office of McDonald Carano Wilson LLP.)
City of Sparks v. Sparks Mun. Court, 129 Nev. Adv. Op. 38 (May 30, 2013)
Before the Court En Banc. Opinion by Justice Hardesty.
In this appeal from a district court order granting a preliminary injunction, the Court considered 1) whether the City of Sparks could interfere with the Sparks Municipal Court’s control over its own personnel decisions, and 2) what, if any, influence the city may exert over the budget the city allocates to the court. The dispute arose when the Sparks City Council asked the Municipal Court to reduce the salaries of its court administrator and judicial assistant. After unsuccessful attempts to resolve the dispute via proposed amendments to the city charter, the Municipal Court filed a complaint with the district court for injunctive relief, which the district court granted, and the city subsequently appealed. With respect to the first issue, the Court examined Article 15, Section 11 of the Nevada Constitution, which permits a municipality to enact charter provisions governing the tenure and dismissal of any municipal “officer or employee.” Finding that Section 11 was ambiguous on its face, the Court looked past the plain language of the provision to the intent of the voters who approved the provision, and concluded that the provision was meant to apply only to officers, not employees. The Court then held that the city’s interference with the municipal court’s personnel decisions violated the separation of powers doctrine and infringed upon the inherent power of the judiciary to manage its internal affairs free from intrusion from any other branch of government. Regarding the second issue, however, the Court found that the parties had failed to develop the record sufficiently enough for the Court to rule. The Court reversed the district court’s ruling with respect to this issue and remanded the case for further proceedings to develop the record and determine whether any actual controversy still existed. In a separate opinion, Chief Justice Pickering concurred with the majority’s decision to reverse and remand, but dissented with respect to the majority’s decision to look past a plain reading of Section 11, which on its face clearly gives the city the authority to determine the terms of employment of the employees at issue in this case. Affirmed in part, reversed in part, and remanded. (Jeff S. Riesenmy, Associate in the Las Vegas office of McDonald Carano Wilson.)
In this appeal from a district court order granting a preliminary injunction, the Court considered 1) whether the City of Sparks could interfere with the Sparks Municipal Court’s control over its own personnel decisions, and 2) what, if any, influence the city may exert over the budget the city allocates to the court. The dispute arose when the Sparks City Council asked the Municipal Court to reduce the salaries of its court administrator and judicial assistant. After unsuccessful attempts to resolve the dispute via proposed amendments to the city charter, the Municipal Court filed a complaint with the district court for injunctive relief, which the district court granted, and the city subsequently appealed. With respect to the first issue, the Court examined Article 15, Section 11 of the Nevada Constitution, which permits a municipality to enact charter provisions governing the tenure and dismissal of any municipal “officer or employee.” Finding that Section 11 was ambiguous on its face, the Court looked past the plain language of the provision to the intent of the voters who approved the provision, and concluded that the provision was meant to apply only to officers, not employees. The Court then held that the city’s interference with the municipal court’s personnel decisions violated the separation of powers doctrine and infringed upon the inherent power of the judiciary to manage its internal affairs free from intrusion from any other branch of government. Regarding the second issue, however, the Court found that the parties had failed to develop the record sufficiently enough for the Court to rule. The Court reversed the district court’s ruling with respect to this issue and remanded the case for further proceedings to develop the record and determine whether any actual controversy still existed. In a separate opinion, Chief Justice Pickering concurred with the majority’s decision to reverse and remand, but dissented with respect to the majority’s decision to look past a plain reading of Section 11, which on its face clearly gives the city the authority to determine the terms of employment of the employees at issue in this case. Affirmed in part, reversed in part, and remanded. (Jeff S. Riesenmy, Associate in the Las Vegas office of McDonald Carano Wilson.)
Brown v. MHC Stagecoach, 129 Nev. Adv. Op. 37 (May 30, 2013)
Before the Court En Banc. Opinion by Justice Gibbons.
In this appeal, the Court held that it lacked jurisdiction to consider an appeal of an order that statistically closed a case. Appellant was a former employee of Respondent who alleged that discriminatory treatment resulted in her constructive termination. The parties negotiated a settlement agreement and the district court entered an order instantiating the terms of the settlement, but not entering a final judgment. Appellant subsequently refused to accept the settlement funds and contested the validity of the settlement. Thereafter, the district court entered a form order statistically closing the case on the basis that there had been a stipulated judgment and Appellant appealed this order. The Court recognized that it had appellate jurisdiction to review decisions of the district courts but only where the appeals are authorized by statute or court rule. The form order in question was not a final, appealable judgment under NRAP 3A(b)(1) because it did not resolve the underlying case or claims. There was also no other statute or court rule providing for the appeal of this type of an order. The Court explicitly noted that Appellant would be able to challenge a future judgment or order that finally adjudicated the rights of Appellant. Dismissed. (Adam Hosmer-Henner, Associate in the Reno office of McDonald Carano Wilson LLP.)
In this appeal, the Court held that it lacked jurisdiction to consider an appeal of an order that statistically closed a case. Appellant was a former employee of Respondent who alleged that discriminatory treatment resulted in her constructive termination. The parties negotiated a settlement agreement and the district court entered an order instantiating the terms of the settlement, but not entering a final judgment. Appellant subsequently refused to accept the settlement funds and contested the validity of the settlement. Thereafter, the district court entered a form order statistically closing the case on the basis that there had been a stipulated judgment and Appellant appealed this order. The Court recognized that it had appellate jurisdiction to review decisions of the district courts but only where the appeals are authorized by statute or court rule. The form order in question was not a final, appealable judgment under NRAP 3A(b)(1) because it did not resolve the underlying case or claims. There was also no other statute or court rule providing for the appeal of this type of an order. The Court explicitly noted that Appellant would be able to challenge a future judgment or order that finally adjudicated the rights of Appellant. Dismissed. (Adam Hosmer-Henner, Associate in the Reno office of McDonald Carano Wilson LLP.)
Bisch v. Las Vegas Metro. Police Dep't, 129 Nev. Adv. Op. 36 (May 30, 2013)
Before the Court en banc (Chief Justice Pickering recused). Opinion by Justice Parraguirre.
In this appeal of a district court order upholding a decision by the Employee Management Relations Board (EMRB), the Court considered whether, pursuant to NRS 289.080, the appellant, Laurie Bisch, was entitled to a police protective association (PPA) representative, in addition to her private attorney, during an internal investigation interview. Secondarily, the Court considered whether Bisch’s ultimate discipline -- a formal written reprimand for violation of “conduct unbecoming an employee” -- was based on overly broad criteria, or was politically motivated because it was known that Bisch intended to run for Sheriff. The underlying investigation by LVMPD arose from a complaint filed by the mother of a 17-year-old friend of Bisch’s daughter that alleged Bisch committed insurance fraud when Bisch misrepresented the 17-year-old’s identity to a medical facility after a dog bite. LVMPD internal affairs opened an investigation, but determined that Bisch did not commit insurance fraud because she did not use her employer-provided health care insurance, instead paying for the medical care out-of-pocket. Internal affairs contacted the district attorney’s office to inquire whether Bisch violated any other laws; the district attorney indicated that Bisch may have committed identity theft. Although a LVMPD sergeant eventually recommended that the complaint against Bisch be dropped, LVMPD later decided the complaint would stand on grounds that the conduct was unbecoming an employee. On appeal, the Court noted that the interpretation of NRS 289.080 regarding any duty owed by a PPA is an issue of first impression. The Court held that NRS 289.080 does not impose an affirmative duty on a PPA to provide two representatives, only that an officer has a right to have two representatives. The Court further held that the protections of NRS 289.080 only exist between an officer and his/her employer; it does not govern a PPA’s responsibility towards its members. Next, the Court rejected Bisch’s claim that her discipline was improper because untruthfulness bore on her fitness to perform her profession, and protecting the integrity of the police department is a legitimate basis for imposing discipline. Finally, applying the burden shifting framework articulated in Reno Police Protective Ass’n v. City of Reno, 102 Nev. 98, 715 P.2d 1321 (1986), and adopting the revised framework in Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 276-78 (1994), the Court found that EMRB’s conclusions that Bisch established a prima facie case of discrimination, LVMPD established a nondiscriminatory reason for discipline, and that Bisch was unable to overcome her burden to demonstrate that LVMPD’s stated reasons were merely pretextual, were supported by substantial evidence. Affirmed. (Kristen T. Gallagher, Associate in the Las Vegas office of McDonald Carano Wilson.)
In this appeal of a district court order upholding a decision by the Employee Management Relations Board (EMRB), the Court considered whether, pursuant to NRS 289.080, the appellant, Laurie Bisch, was entitled to a police protective association (PPA) representative, in addition to her private attorney, during an internal investigation interview. Secondarily, the Court considered whether Bisch’s ultimate discipline -- a formal written reprimand for violation of “conduct unbecoming an employee” -- was based on overly broad criteria, or was politically motivated because it was known that Bisch intended to run for Sheriff. The underlying investigation by LVMPD arose from a complaint filed by the mother of a 17-year-old friend of Bisch’s daughter that alleged Bisch committed insurance fraud when Bisch misrepresented the 17-year-old’s identity to a medical facility after a dog bite. LVMPD internal affairs opened an investigation, but determined that Bisch did not commit insurance fraud because she did not use her employer-provided health care insurance, instead paying for the medical care out-of-pocket. Internal affairs contacted the district attorney’s office to inquire whether Bisch violated any other laws; the district attorney indicated that Bisch may have committed identity theft. Although a LVMPD sergeant eventually recommended that the complaint against Bisch be dropped, LVMPD later decided the complaint would stand on grounds that the conduct was unbecoming an employee. On appeal, the Court noted that the interpretation of NRS 289.080 regarding any duty owed by a PPA is an issue of first impression. The Court held that NRS 289.080 does not impose an affirmative duty on a PPA to provide two representatives, only that an officer has a right to have two representatives. The Court further held that the protections of NRS 289.080 only exist between an officer and his/her employer; it does not govern a PPA’s responsibility towards its members. Next, the Court rejected Bisch’s claim that her discipline was improper because untruthfulness bore on her fitness to perform her profession, and protecting the integrity of the police department is a legitimate basis for imposing discipline. Finally, applying the burden shifting framework articulated in Reno Police Protective Ass’n v. City of Reno, 102 Nev. 98, 715 P.2d 1321 (1986), and adopting the revised framework in Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 276-78 (1994), the Court found that EMRB’s conclusions that Bisch established a prima facie case of discrimination, LVMPD established a nondiscriminatory reason for discipline, and that Bisch was unable to overcome her burden to demonstrate that LVMPD’s stated reasons were merely pretextual, were supported by substantial evidence. Affirmed. (Kristen T. Gallagher, Associate in the Las Vegas office of McDonald Carano Wilson.)
Cucinotta v. Deloitte & Touche, L.L.P., 129 Nev. Adv. Op. 35 (May 30, 2013)
Before the Court En Banc. Opinion by Justice Cherry.
In this appeal, the Court considered whether information divulged by a registered accounting firm in accordance with the Securities Exchange Act of 1934 is subject to an absolute privilege in a defamation action. The Court answered in the affirmative, holding that such a firm should be encouraged to freely disseminate information concerning alleged illegal acts so long as the disclosure is made pursuant to federal securities law and made to the appropriate level of management. Respondents served as independent auditors for the Appellants’ employer, a company that supplied cash access services to the gaming industry. Respondents discovered information about alleged illegal acts committed by the Appellants and Appellants’ employer. The Respondents then communicated the allegations to the Audit Committee of the Appellants’ employer. The employer conducted an internal investigation and found no evidence of wrongdoing by the Appellants or the company; shortly thereafter, however, the Appellants resigned from the Board of Directors and filed a defamation complaint against the Respondents. The Court adopted section 592A of the Restatement (Second) of Torts, holding that those who are required by law to publish defamatory statements are absolutely privileged in making such statements provided that the communications are made (1) pursuant to a lawful process and (2) to a qualified person. Thus, because the Respondents had made the potentially defamatory statements “in the discharge of a duty under express authority” of federal securities law, and because those statements were made to the employer’s Audit Committee (a qualified person under federal securities law), Respondents were entitled to absolute privilege. Affirmed. Rory T. Kay, Associate in the Las Vegas office of McDonald Carano Wilson LLP).
In this appeal, the Court considered whether information divulged by a registered accounting firm in accordance with the Securities Exchange Act of 1934 is subject to an absolute privilege in a defamation action. The Court answered in the affirmative, holding that such a firm should be encouraged to freely disseminate information concerning alleged illegal acts so long as the disclosure is made pursuant to federal securities law and made to the appropriate level of management. Respondents served as independent auditors for the Appellants’ employer, a company that supplied cash access services to the gaming industry. Respondents discovered information about alleged illegal acts committed by the Appellants and Appellants’ employer. The Respondents then communicated the allegations to the Audit Committee of the Appellants’ employer. The employer conducted an internal investigation and found no evidence of wrongdoing by the Appellants or the company; shortly thereafter, however, the Appellants resigned from the Board of Directors and filed a defamation complaint against the Respondents. The Court adopted section 592A of the Restatement (Second) of Torts, holding that those who are required by law to publish defamatory statements are absolutely privileged in making such statements provided that the communications are made (1) pursuant to a lawful process and (2) to a qualified person. Thus, because the Respondents had made the potentially defamatory statements “in the discharge of a duty under express authority” of federal securities law, and because those statements were made to the employer’s Audit Committee (a qualified person under federal securities law), Respondents were entitled to absolute privilege. Affirmed. Rory T. Kay, Associate in the Las Vegas office of McDonald Carano Wilson LLP).
Chapman v. Deutsche Bank Nat'l Trust Co., 129 Nev. Adv. Op. 34 (May 30, 2013)
Before the Court En Banc. Opinion by Chief Justice Pickering.
In this matter, in which the Ninth Circuit Court of Appeals certified two questions to the Nevada Supreme Court, the Court considered whether the following actions are properly characterized as proceedings in personam (in which a judgment acts only upon the parties to the suit), in rem (a proceeding taken directly against property, in which a judgment applies against the entire world), or quasi in rem (a proceeding to determine rights in certain property; i.e., “a halfway house between in rem and in personam proceedings): 1) a quiet title action under NRS 40.010, which is premised on an allegedly invalid trustee’s sale under NRS 107.080(5)(a); and 2) an unlawful detainer action under NRS 40.255(1)(c). The Court concluded that a quiet title action is “predominately in rem or quasi in rem,” because its primary purpose was to establish title to real property. In so holding, the Court rejected Deutsche Bank’s argument that a quiet title action in which the plaintiff also seeks monetary damages changes the nature of the proceeding to an in personam proceeding. The Court also concluded that although an unlawful detainer action “does not adjudicate title or an absolute right to possession of property,” an unlawful detainer action is nevertheless a proceeding in rem or quasi in rem because its purpose is to determine rights to possession – a lesser property interest than title, but a property interest nonetheless – as between a plaintiff and a defendant. Having so concluded, the Court answered the certified questions in the affirmative. (Patrick J. Murch, Associate in the Las Vegas office of McDonald Carano Wilson.)
In this matter, in which the Ninth Circuit Court of Appeals certified two questions to the Nevada Supreme Court, the Court considered whether the following actions are properly characterized as proceedings in personam (in which a judgment acts only upon the parties to the suit), in rem (a proceeding taken directly against property, in which a judgment applies against the entire world), or quasi in rem (a proceeding to determine rights in certain property; i.e., “a halfway house between in rem and in personam proceedings): 1) a quiet title action under NRS 40.010, which is premised on an allegedly invalid trustee’s sale under NRS 107.080(5)(a); and 2) an unlawful detainer action under NRS 40.255(1)(c). The Court concluded that a quiet title action is “predominately in rem or quasi in rem,” because its primary purpose was to establish title to real property. In so holding, the Court rejected Deutsche Bank’s argument that a quiet title action in which the plaintiff also seeks monetary damages changes the nature of the proceeding to an in personam proceeding. The Court also concluded that although an unlawful detainer action “does not adjudicate title or an absolute right to possession of property,” an unlawful detainer action is nevertheless a proceeding in rem or quasi in rem because its purpose is to determine rights to possession – a lesser property interest than title, but a property interest nonetheless – as between a plaintiff and a defendant. Having so concluded, the Court answered the certified questions in the affirmative. (Patrick J. Murch, Associate in the Las Vegas office of McDonald Carano Wilson.)
Thursday, May 16, 2013
Galardi v. Naples Polaris, LLC, 129 Nev. Adv. Op. 33 (May 16, 2013)
Before Chief Justice Pickering, Justices Hardesty and Saitta. Opinion by Chief Justice Pickering.
In this appeal, the court examined Nevada law on contract interpretation in determining whether a real estate option contract required the buyer or the seller to remove an encumbrance on the property subject to the contract upon the sale. At issue on appeal was whether the district court properly considered evidence of trade usage to determine that the contract was unambiguous and, therefore, exclude parol evidence. The Court adopted the modern standard regarding trade usage and held that ambiguity in a contract is not required before evidence of trade usage or custom can be used to ascertain or illuminate contract terms. Applying this principle, the Court found that the district court properly deemed an expert’s affidavit regarding trade usage admissible and that the option contract was unambiguous in light of the trade usages established by the expert affidavit. The Court further determined that the seller’s deposition testimony regarding his subjective understanding of the contract’s terms was inadmissible under the parol evidence rule because it contradicted the contract’s express terms, and that the testimony was not relevant to contradict the expert’s testimony on industry usage and custom. Because the seller’s testimony was either inadmissible or irrelevant or both, the Court held it was insufficient to create a genuine issue of material fact to defeat summary judgment, affirming the district court’s grant of summary judgment. Affirmed. (Megan Starich, Associate in the Reno office of McDonald Carano Wilson LLP.)
In this appeal, the court examined Nevada law on contract interpretation in determining whether a real estate option contract required the buyer or the seller to remove an encumbrance on the property subject to the contract upon the sale. At issue on appeal was whether the district court properly considered evidence of trade usage to determine that the contract was unambiguous and, therefore, exclude parol evidence. The Court adopted the modern standard regarding trade usage and held that ambiguity in a contract is not required before evidence of trade usage or custom can be used to ascertain or illuminate contract terms. Applying this principle, the Court found that the district court properly deemed an expert’s affidavit regarding trade usage admissible and that the option contract was unambiguous in light of the trade usages established by the expert affidavit. The Court further determined that the seller’s deposition testimony regarding his subjective understanding of the contract’s terms was inadmissible under the parol evidence rule because it contradicted the contract’s express terms, and that the testimony was not relevant to contradict the expert’s testimony on industry usage and custom. Because the seller’s testimony was either inadmissible or irrelevant or both, the Court held it was insufficient to create a genuine issue of material fact to defeat summary judgment, affirming the district court’s grant of summary judgment. Affirmed. (Megan Starich, Associate in the Reno office of McDonald Carano Wilson LLP.)
Thursday, May 2, 2013
City of Las Vegas v. Evans, 129 Nev. Adv. Op. 31 (May 2, 2013)
Before Justices Gibbons, Douglas, and Saitta. Opinion by Justice Saitta.
In this appeal from a denial of a petition for judicial review in a workers’ compensation matter, the Court considered two issues: (1) whether a firefighter could still seek workers’ compensation benefits without obtaining the benefit of a specific rebuttable presumption provided by NRS 617.453; and (2) whether substantial evidence supported an appeals officer’s decision that a firefighter’s cancer was a compensable occupational disease. NRS 617.440 outlines the requirements for proving a compensable occupational disease and NRS 617.358(1) requires that an employee prove “by a preponderance of the evidence that the employee’s occupational disease arose out of and in the scope of his or her employment.” These two provisions, however, do not apply to claims filed under NRS 617.453, which establishes a conditional rebuttable presumption that a firefighter’s cancer arose out of his or her employment if he or she has been employed as a firefighter full-time for five or more years. The Court analyzed the relationship between these statutes and concluded that when a workers' compensation claimant fails to meet a condition necessary to receive the benefit of the presumption set forth in NRS 617.453, this results in only the loss of the presumption and does not preclude the claimant from obtaining compensation under the more general statutory requirements. In this case, the employee had only been employed as a full-time firefighter for four years. Even though he was not entitled to the rebuttable presumption of NRS 617.453, he could still obtain compensation by demonstrating the disease arose out of and in the scope of his employment. The court further held that substantial evidence supported the appeals officer’s conclusion that the employee’s cancer was a compensable occupational disease. Affirmed. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson).
In this appeal from a denial of a petition for judicial review in a workers’ compensation matter, the Court considered two issues: (1) whether a firefighter could still seek workers’ compensation benefits without obtaining the benefit of a specific rebuttable presumption provided by NRS 617.453; and (2) whether substantial evidence supported an appeals officer’s decision that a firefighter’s cancer was a compensable occupational disease. NRS 617.440 outlines the requirements for proving a compensable occupational disease and NRS 617.358(1) requires that an employee prove “by a preponderance of the evidence that the employee’s occupational disease arose out of and in the scope of his or her employment.” These two provisions, however, do not apply to claims filed under NRS 617.453, which establishes a conditional rebuttable presumption that a firefighter’s cancer arose out of his or her employment if he or she has been employed as a firefighter full-time for five or more years. The Court analyzed the relationship between these statutes and concluded that when a workers' compensation claimant fails to meet a condition necessary to receive the benefit of the presumption set forth in NRS 617.453, this results in only the loss of the presumption and does not preclude the claimant from obtaining compensation under the more general statutory requirements. In this case, the employee had only been employed as a full-time firefighter for four years. Even though he was not entitled to the rebuttable presumption of NRS 617.453, he could still obtain compensation by demonstrating the disease arose out of and in the scope of his employment. The court further held that substantial evidence supported the appeals officer’s conclusion that the employee’s cancer was a compensable occupational disease. Affirmed. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson).
Jacinto v. PennyMac Corp., 129 Nev. Adv. Op. 32 (May 2, 2013)
Before Justices Gibbons, Douglas, and Saitta. Opinion by Justice Douglas.
In this appeal from a petition for judicial review of a foreclosure mediation, the Court considered whether a homeowner who obtained some relief but not all the requested relief is an aggrieved party with standing to appeal. Under a NRAP 3A, to have standing to appeal, a party must be “aggrieved”, meaning adversely and substantially affected by a challenged judgment. In this opinion, the Court makes clear that a party who receives an order granting some requested relief but denying other relief may be considered aggrieved under NRAP 3A. Addressing the substance of the appeal, the Court held that the district court did not abuse its discretion when it granted only monetary sanctions for the lender’s failure to comply with the foreclosure mediation rules. Affirmed. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
In this appeal from a petition for judicial review of a foreclosure mediation, the Court considered whether a homeowner who obtained some relief but not all the requested relief is an aggrieved party with standing to appeal. Under a NRAP 3A, to have standing to appeal, a party must be “aggrieved”, meaning adversely and substantially affected by a challenged judgment. In this opinion, the Court makes clear that a party who receives an order granting some requested relief but denying other relief may be considered aggrieved under NRAP 3A. Addressing the substance of the appeal, the Court held that the district court did not abuse its discretion when it granted only monetary sanctions for the lender’s failure to comply with the foreclosure mediation rules. Affirmed. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
Sylver v. Regents Bank, N.A., 129 Nev. Adv. Op. 30 (May 2, 2013)
Before Justices Hardesty, Parraguirre, and Cherry. Opinion by Justice Parraguirre.
In this appeal, the Court announced a standard for determining if an arbitration award was obtained through undue means, and addressed whether an arbitrator manifestly disregarded the law by refusing to void a loan transaction. Respondent bank obtained an arbitration award against appellant borrower. In obtaining the award, Respondent used deposition testimony for a key witness whom Respondent represented was unavailable to appear at the arbitration hearing. Both parties examined the witness at a deposition. When Respondent filed a motion in district court to confirm the arbitration award, Appellant offered evidence that Respondent had misrepresented the unavailability of the witness, who actually would have been available and willing to appear at the arbitration hearing. The district court confirmed the award. Appellant challenged the award on appeal, arguing that the award had been obtained using undue means. The Court interpreted the meaning of “undue means” in NRS 38.241 to comport with the federal standard providing that the challenging party faces the burden of establishing by clear and convincing evidence that the other party obtained the award by engaging in intentional misconduct that could not have been discovered with the exercise of due diligence. The Court held that (1) Respondent’s representation about the witness, even if incorrect, did not rise to the level of corruption or fraud required to establish undue mean; (2) the witness’s availability was discoverable through due diligence; and (3) appellant showed no causal connection between the award and the alleged misrepresentation. The second issue on appeal was whether the arbitrator manifestly disregarded the law in refusing to void one of the subject loans, on the grounds that Respondent had never sought a certificate of exemption before engaging in mortgage banking, as required by NRS 645E.910. The arbitrator had noted the failure to obtain a certificate, but recognizing that no civil remedy existed for this statutory violation, held that the unintentional violation had no materiality to the parties’ dispute. On appeal, the court noted that the “manifest disregard” standard does not inquire whether the arbitrator incorrectly interpreted the law, but whether the arbitrator, knowing the law required a particular result, simply disregarded it. Appellant did not meet this “very high hurdle.” The court declined to address the issue of whether the failure to comply with a licensing requirement renders a contract unenforceable, because the operative standard of review in the case did not entail plenary judiciary review. Affirmed. (Mark W. Dunagan, Associate in the Reno office of McDonald Carano Wilson.)
In this appeal, the Court announced a standard for determining if an arbitration award was obtained through undue means, and addressed whether an arbitrator manifestly disregarded the law by refusing to void a loan transaction. Respondent bank obtained an arbitration award against appellant borrower. In obtaining the award, Respondent used deposition testimony for a key witness whom Respondent represented was unavailable to appear at the arbitration hearing. Both parties examined the witness at a deposition. When Respondent filed a motion in district court to confirm the arbitration award, Appellant offered evidence that Respondent had misrepresented the unavailability of the witness, who actually would have been available and willing to appear at the arbitration hearing. The district court confirmed the award. Appellant challenged the award on appeal, arguing that the award had been obtained using undue means. The Court interpreted the meaning of “undue means” in NRS 38.241 to comport with the federal standard providing that the challenging party faces the burden of establishing by clear and convincing evidence that the other party obtained the award by engaging in intentional misconduct that could not have been discovered with the exercise of due diligence. The Court held that (1) Respondent’s representation about the witness, even if incorrect, did not rise to the level of corruption or fraud required to establish undue mean; (2) the witness’s availability was discoverable through due diligence; and (3) appellant showed no causal connection between the award and the alleged misrepresentation. The second issue on appeal was whether the arbitrator manifestly disregarded the law in refusing to void one of the subject loans, on the grounds that Respondent had never sought a certificate of exemption before engaging in mortgage banking, as required by NRS 645E.910. The arbitrator had noted the failure to obtain a certificate, but recognizing that no civil remedy existed for this statutory violation, held that the unintentional violation had no materiality to the parties’ dispute. On appeal, the court noted that the “manifest disregard” standard does not inquire whether the arbitrator incorrectly interpreted the law, but whether the arbitrator, knowing the law required a particular result, simply disregarded it. Appellant did not meet this “very high hurdle.” The court declined to address the issue of whether the failure to comply with a licensing requirement renders a contract unenforceable, because the operative standard of review in the case did not entail plenary judiciary review. Affirmed. (Mark W. Dunagan, Associate in the Reno office of McDonald Carano Wilson.)
Thursday, April 25, 2013
Falconi v. Secretary of State, 129 Nev. Adv. Op. 28 (April 25, 2013)
Before Justices Hardesty, Parraguirre, and Cherry. Opinion by Justice Cherry.
In this extraordinary writ proceeding, the Court analyzed whether a co-parent with joint custody of a child, Falconi, may seek the disclosure of the fictitious address of the other co-parent, Farrar, which was obtained from the Secretary of State based on evidence of domestic violence by Falconi. The Court determined that a TRO issued to Farrar following a physical altercation at the parties’ shared residence was sufficient to support the issuance of the fictitious address to Farrar under NRS 217.462. The Secretary of State was obligated to issue the fictitious address based on the TRO and was neither required nor authorized by statute to inquire into whether the TRO was issued based on a finding of domestic violence or a finding or a potential threat of violence. As for Falconi’s request for Farrar’s confidential address, the Court adopted the reasoning of Sacharow v. Sacharow, 826 A.2d 710, 714 (N.J. 2003), which balanced the competing interests of one parent’s need for confidentiality against the need for the other parent to know where the child was living. In Sacharow, the court placed the burden on the parent with the confidential address to establish that he or she was the victim of domestic violence at the hands of the other parent, and that he or she reasonably feared future violence. If established, the burden shifts to the other parent to establish that, based on other factors, address confidentiality is not in the child’s best interest. As applied in Nevada, the Sacharow analysis comes into play after the parent seeking the confidential address establishes that he or she shares joint legal custody. Ultimately, the Court denied the writ, finding that the district court was the appropriate court to make the pertinent factual determinations. The Court specifically indicated that its decision did not impair Falconi’s right to seek relief in the district court. Petition denied. (David Stoft, Associate in the Las Vegas office of McDonald Carano Wilson).
In this extraordinary writ proceeding, the Court analyzed whether a co-parent with joint custody of a child, Falconi, may seek the disclosure of the fictitious address of the other co-parent, Farrar, which was obtained from the Secretary of State based on evidence of domestic violence by Falconi. The Court determined that a TRO issued to Farrar following a physical altercation at the parties’ shared residence was sufficient to support the issuance of the fictitious address to Farrar under NRS 217.462. The Secretary of State was obligated to issue the fictitious address based on the TRO and was neither required nor authorized by statute to inquire into whether the TRO was issued based on a finding of domestic violence or a finding or a potential threat of violence. As for Falconi’s request for Farrar’s confidential address, the Court adopted the reasoning of Sacharow v. Sacharow, 826 A.2d 710, 714 (N.J. 2003), which balanced the competing interests of one parent’s need for confidentiality against the need for the other parent to know where the child was living. In Sacharow, the court placed the burden on the parent with the confidential address to establish that he or she was the victim of domestic violence at the hands of the other parent, and that he or she reasonably feared future violence. If established, the burden shifts to the other parent to establish that, based on other factors, address confidentiality is not in the child’s best interest. As applied in Nevada, the Sacharow analysis comes into play after the parent seeking the confidential address establishes that he or she shares joint legal custody. Ultimately, the Court denied the writ, finding that the district court was the appropriate court to make the pertinent factual determinations. The Court specifically indicated that its decision did not impair Falconi’s right to seek relief in the district court. Petition denied. (David Stoft, Associate in the Las Vegas office of McDonald Carano Wilson).
State v. Frederick, 129 Nev. Adv. Op. 27 (April 25, 2013)
Before the Court en banc. Opinion by Justice Parraguirre.
In this appeal, the Court considered whether justices of the peace may take felony pleas while serving as district court masters. The Court held that a lawfully appointed district court master, in accordance with EDCR 1.48, could accept a guilty plea. To address this question, the Court considered: (1) whether NRS 3.245 violates the separation of powers doctrine, and (2) whether EDCR 1.48 falls within the Legislature’s grant of authority under NRS 3.245. With respect to NRS 3.245, the Court concluded that it is a proper delegation of power to the judiciary to set forth the specific duties of district court masters. The Legislature explicitly delegated to the district court the authority to appoint masters for “criminal proceedings to perform certain subordinate or administrative duties that the Nevada Supreme Court has approved to be assigned to such master.” Further, the powers delegated to the judiciary pursuant to NRS 3.245 fall within the judicial function, which is defined as “the exercise of judicial authority to hear and determine questions in controversy that are proper to be examined in a court of justice.” Thus, NRS 3.245 is an appropriate delegation of ministerial power to the judiciary such that it does not violate Article 3, Section 1 of the Nevada Constitution. With respect to EDCR 1.48, the Court determined that this rule permits individuals who are qualified based on their judicial experience to be appointed to serve as district court masters. The fact that justices of the peace might also serve as district court masters is only incidental to their roles as justices of the peace and is not an unconstitutional judicial expansion of the justice court’s jurisdiction. Reversed. (Lisa M. Wiltshire Alstead, Associate in the Reno office of McDonald Carano Wilson.)
In this appeal, the Court considered whether justices of the peace may take felony pleas while serving as district court masters. The Court held that a lawfully appointed district court master, in accordance with EDCR 1.48, could accept a guilty plea. To address this question, the Court considered: (1) whether NRS 3.245 violates the separation of powers doctrine, and (2) whether EDCR 1.48 falls within the Legislature’s grant of authority under NRS 3.245. With respect to NRS 3.245, the Court concluded that it is a proper delegation of power to the judiciary to set forth the specific duties of district court masters. The Legislature explicitly delegated to the district court the authority to appoint masters for “criminal proceedings to perform certain subordinate or administrative duties that the Nevada Supreme Court has approved to be assigned to such master.” Further, the powers delegated to the judiciary pursuant to NRS 3.245 fall within the judicial function, which is defined as “the exercise of judicial authority to hear and determine questions in controversy that are proper to be examined in a court of justice.” Thus, NRS 3.245 is an appropriate delegation of ministerial power to the judiciary such that it does not violate Article 3, Section 1 of the Nevada Constitution. With respect to EDCR 1.48, the Court determined that this rule permits individuals who are qualified based on their judicial experience to be appointed to serve as district court masters. The fact that justices of the peace might also serve as district court masters is only incidental to their roles as justices of the peace and is not an unconstitutional judicial expansion of the justice court’s jurisdiction. Reversed. (Lisa M. Wiltshire Alstead, Associate in the Reno office of McDonald Carano Wilson.)
Egan v. Chambers, 129 Nev. Adv. Op. 25 (April 25, 2013)
Before the Court en banc. Opinion by Justice Cherry.
This appeal dealt with the question of whether an affidavit of merit pursuant to NRS 41A.071 was required in a professional negligence suit. An affidavit of merit is a supporting affidavit of a medical expert practicing in an area substantially similar to the type of practice engaged in at the time of the alleged malpractice. NRS 41A.071 requires that an affidavit of merit be filed in actions for medical and dental malpractice. Previously however, in Fierle v. Perez, 125 Nev. 728, 219 P.3d 906 (2009), the Court had ruled that an affidavit of merit was required in all professional negligence actions, not just medical and dental malpractice actions. In this case, the claims were based on the professional negligence of a podiatrist – a profession that is outside the scope of the statutory definition of medical malpractice. The Court concluded, based on the plain language of NRS 41A.071, that the affidavit of merit requirements did not extend to the professional negligence claims against the podiatrist. The Court overruled Fierle, holding that the affidavit of merit requirement only applies to medical and dental malpractice actions, not professional negligence actions. Reversed. (Joe Schrage, Associate in the Las Vegas office of McDonald Carano Wilson.)
This appeal dealt with the question of whether an affidavit of merit pursuant to NRS 41A.071 was required in a professional negligence suit. An affidavit of merit is a supporting affidavit of a medical expert practicing in an area substantially similar to the type of practice engaged in at the time of the alleged malpractice. NRS 41A.071 requires that an affidavit of merit be filed in actions for medical and dental malpractice. Previously however, in Fierle v. Perez, 125 Nev. 728, 219 P.3d 906 (2009), the Court had ruled that an affidavit of merit was required in all professional negligence actions, not just medical and dental malpractice actions. In this case, the claims were based on the professional negligence of a podiatrist – a profession that is outside the scope of the statutory definition of medical malpractice. The Court concluded, based on the plain language of NRS 41A.071, that the affidavit of merit requirements did not extend to the professional negligence claims against the podiatrist. The Court overruled Fierle, holding that the affidavit of merit requirement only applies to medical and dental malpractice actions, not professional negligence actions. Reversed. (Joe Schrage, Associate in the Las Vegas office of McDonald Carano Wilson.)
Thursday, April 4, 2013
Rock Bay, LLC v. Dist. Ct., 129 Nev. Adv. Op. 21 (April 4, 2013)
Before Chief Justice Pickering and Justices Hardesty and Siatta. Opinion by Justice Hardesty
In this petition for a writ of prohibition, the Court considered when discovery of a nonparty’s assets is permissible under NRCP 69(a), which allows for post-judgment discovery in aid of execution of a judgment. The creditors had obtained a judgment in Florida against a group of debtors. During the course of the Florida litigation, there was a series of transfers between the debtors and Rock Bay. Rock Bay was an entity that was deeply intertwined with the judgment debtors and the managing member of Rock Bay was Maybourne, Inc., an entity having the same address as the judgment debtors. The judgment creditors domesticated the Florida judgment in Nevada. Shortly thereafter, Rock Bay was dissolved. The judgment creditors subpoenaed Rock Bay’s and Maybourne’s accounting records and Rock Bay’s financial records. Petitioners, Rock Bay and Maybourne moved to quash, which the district court denied. The Court concluded that discovery of a nonparty’s assets under NRCP 69(a) is not permissible absent special circumstances such as situations in which the judgment debtor and the nonparty have a relationship which raises a reasonable suspicion as to the good faith of asset transfers between the two parties or when the nonparty is the alter ego of the judgment debtor. Thus, the Court determined that the subpoenas issued against Rock Bay were permissible even when considering Rock Bay’s privacy interests in financial records because there was a relationship between the judgment debtors and Rock Bay which raised a reasonable suspicion as to the good faith of the transfers between the parties. However, the Court concluded that the district court improperly declined to quash the subpoena issued against Maybourne as there was no evidence that Maybourne ever held or transferred assets with the judgment debtors nor did the judgment creditors ever assert that Maybourne was an alter ego. Petition denied in part and granted in part. (Amanda M. Perach, Associate in the Las Vegas office of McDonald Carano Wilson).
Majuba Mining, Ltd. v. Pumpkin Copper, Inc., 129 Nev. Adv. Op. 19 (Apr. 4, 2013)
Before Justices Hardesty, Parraguirre and Cherry. Opinion by Justice Cherry.
This appeal arose out of a district court order in an action to quiet title, in which the district court apparently held that Pumpkin Copper’s title to certain unpatented federal mining claims was superior to Majuba Mining’s title. Sometime after Majuba Mining initiated the appeal, the Bureau of Land Management determined that Majuba Mining had forfeited the mining claims because it failed to pay the annual claim maintenance fees required under federal law. Accordingly, because Majuba Mining no longer had an interest to protect in a quiet title action, the legal controversy regarding superior title that had existed at the beginning of the litigation was no longer at issue. Dismissed as moot. (Patrick Murch, Associate in the Las Vegas office of McDonald Carano Wilson).
This appeal arose out of a district court order in an action to quiet title, in which the district court apparently held that Pumpkin Copper’s title to certain unpatented federal mining claims was superior to Majuba Mining’s title. Sometime after Majuba Mining initiated the appeal, the Bureau of Land Management determined that Majuba Mining had forfeited the mining claims because it failed to pay the annual claim maintenance fees required under federal law. Accordingly, because Majuba Mining no longer had an interest to protect in a quiet title action, the legal controversy regarding superior title that had existed at the beginning of the litigation was no longer at issue. Dismissed as moot. (Patrick Murch, Associate in the Las Vegas office of McDonald Carano Wilson).
Holcomb Condo. HOA v. Stewart Venture, 129 Nev. Adv. Op. 18 (April 4, 2013)
Before Chief Justice Pickering and Justices Hardesty and Saitta. Opinion by Justice Hardesty.
In this appeal from a 12(b)(5) motion to dismiss, the Court addressed the validity of a contractual provision shortening the statute of limitations to make claims for construction defects. In particular, the Court examined the requirements of NRS 116.4116, which allows parties to agree to shorten the limitations period from six years to no less than two years for breach of warranty claims involving residential common-interest communities, so long as the parties’ agreement is memorialized in a “separate instrument.” The Court joined numerous other jurisdictions in holding that in general, parties may agree to shorten a statutory limitations period, so long as that agreement does not contradict any other statute, and so long as the agreed-upon period is reasonable and does not violate public policy. A limitations period will be considered unreasonable if it “effectively deprives a party of the reasonable opportunity to vindicate his or her rights.” The Court concluded, however, that the district court erred in finding that the arbitration agreement at issue in this case was a “separate instrument” under NRS 116.4116, since the agreement expressly stated that it was part of the purchase contract, and the purchase contract also expressly stated that the arbitration agreement was incorporated into the contract. Finally, the Court held that the district court erred when it dismissed Appellant’s negligence claims as time-barred, since NRS 116.4116 pertains only to breach of warranty claims. Reversed and remanded. (Jeff S. Riesenmy, Associate in the Las Vegas office of McDonald Carano Wilson).
In this appeal from a 12(b)(5) motion to dismiss, the Court addressed the validity of a contractual provision shortening the statute of limitations to make claims for construction defects. In particular, the Court examined the requirements of NRS 116.4116, which allows parties to agree to shorten the limitations period from six years to no less than two years for breach of warranty claims involving residential common-interest communities, so long as the parties’ agreement is memorialized in a “separate instrument.” The Court joined numerous other jurisdictions in holding that in general, parties may agree to shorten a statutory limitations period, so long as that agreement does not contradict any other statute, and so long as the agreed-upon period is reasonable and does not violate public policy. A limitations period will be considered unreasonable if it “effectively deprives a party of the reasonable opportunity to vindicate his or her rights.” The Court concluded, however, that the district court erred in finding that the arbitration agreement at issue in this case was a “separate instrument” under NRS 116.4116, since the agreement expressly stated that it was part of the purchase contract, and the purchase contract also expressly stated that the arbitration agreement was incorporated into the contract. Finally, the Court held that the district court erred when it dismissed Appellant’s negligence claims as time-barred, since NRS 116.4116 pertains only to breach of warranty claims. Reversed and remanded. (Jeff S. Riesenmy, Associate in the Las Vegas office of McDonald Carano Wilson).
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