Before the Court en banc. Opinion by Justice Douglas.
In this appeal, the court examined the question of whether the statutory requirements for reunification with a child after removal from the home for neglect are required to be fulfilled by the non-offending parent. A child was removed from her mother by Social Services. At the time, the mother and father were separated. Social Services subsequently petitioned for a hearing to determine if the child was in need of protection. The mother signed a stipulation of the allegations against her and willingly relinquished custody, but as to the father, the stipulation only noted a temporary protective order against him, not any neglectful behavior. The father reached a stipulation to dismiss the petition for a hearing against him, but Social Services filed a case plan providing for him to submit to drug screenings. He did not sign the case plan. After several dependency proceedings, Social Services moved to terminate the parental rights of the father because he had not complied with his case plan, which Social Services argued triggered the statutory presumptions of NRS 128.109 in favor of terminating parental rights. The district court denied the petition, stating that these legal presumptions did not apply to the father. On appeal, Social Services argued that the initial removal of the child gave Social Services the jurisdiction to place the child with a suitable parent, and that the father was not a suitable parent. The court held that applying the statutory presumptions in favor of terminating parental rights to the father without having maintained a petition against the father for neglect would be a denial of due process. Because the father’s behavior was not the cause of the removal of the child from parental custody in the first place, he could not be compelled to comply with a case plan for reunification, and Social Services otherwise failed to demonstrate that termination of his parental rights was warranted. Affirmed. (Mark Dunagan, Associate in the Reno office of McDonald Carano Wilson.)
Thursday, February 28, 2013
Peck v. Crouser, 129 Nev. Adv. Op. 12 (Feb. 28, 2013)
Before the Court en banc. Opinion by Justice Gibbons.
In this appeal, the Nevada Supreme Court considered whether the court has jurisdiction over an appeal from a post-judgment order in the district court that designated a party as a “vexatious litigant.” To resolve this question, the court first considered whether this type of post-judgment order is appealable under NRAP 3A(b). The court concluded that the only possible vehicles for this appeal were special orders after final judgment under NRAP 3(b)(8) and injunctions under NRAP 3A(b)(3). However, neither of these provisions applies to orders designating a party as a vexatious litigant. Special orders are limited to decisions that affect the rights of a party to the action and arise out of the judgment, and a declaration that a party is a vexatious litigant arises out of the United States and Nevada Constitutions, case law, statutes, and court rules. Injunctions are governed by NRCP 65, which does not apply to vexatious litigation orders. Accordingly, these orders are not directly appealable and the court dismissed the appeal for lack of jurisdiction. However, the court concluded that a writ is the appropriate way to challenge a vexatious litigant order because such orders relate to whether the district court abused its discretion in issuing the order. Dismissed. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson.)
In this appeal, the Nevada Supreme Court considered whether the court has jurisdiction over an appeal from a post-judgment order in the district court that designated a party as a “vexatious litigant.” To resolve this question, the court first considered whether this type of post-judgment order is appealable under NRAP 3A(b). The court concluded that the only possible vehicles for this appeal were special orders after final judgment under NRAP 3(b)(8) and injunctions under NRAP 3A(b)(3). However, neither of these provisions applies to orders designating a party as a vexatious litigant. Special orders are limited to decisions that affect the rights of a party to the action and arise out of the judgment, and a declaration that a party is a vexatious litigant arises out of the United States and Nevada Constitutions, case law, statutes, and court rules. Injunctions are governed by NRCP 65, which does not apply to vexatious litigation orders. Accordingly, these orders are not directly appealable and the court dismissed the appeal for lack of jurisdiction. However, the court concluded that a writ is the appropriate way to challenge a vexatious litigant order because such orders relate to whether the district court abused its discretion in issuing the order. Dismissed. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson.)
Thursday, February 14, 2013
Morrow v. Dist. Ct., 129 Nev. Adv. Op. 10 (Feb. 14, 2013)
Before Chief Justice Pickering and Justices Hardesty and Saitta. Opinion per curiam.
In this petition for writ of mandamus, the Court considered the time period in which a party must file a peremptory challenge. The Real Party in Interest, Kourtney Morrow (“Kourtney”), filed a complaint for divorce from Petitioner Craig Morrow (“Craig”) and a contemporaneous motion for child custody in the Eighth Judicial District Court. Kourtney properly served Craig with the summons, complaint and motion on April 20, 2012. On May 4, 2012, Craig entered an appearance and filed a peremptory challenge. The clerk then reassigned the matter to Judge Cynthia Dianne Steel. Judge Steel rejected the peremptory challenge finding it had not been filed within the 10-day period prescribed by SCR 48.1. Craig then filed a petition for writ of mandamus, challenging the district court’s rejection of his peremptory challenge. The Court examined the appropriateness of a writ in these circumstances, and held that an extraordinary writ petition is an appropriate means to challenge district court decisions concerning peremptory challenges. The Court then examined the time period within which to file a peremptory challenge under SCR 48.1(3), which states that “the peremptory challenge shall be filed: (a) within 10 days after notification to the parties of a trial or hearing date; or (b) not less than 3 days before the date set for the hearing of any contested pretrial matter, whichever occurs first.” The Court held that the 10-day time period begins to run upon proper notice of a hearing, and that proper notice in this case occurred when Craig was properly served with the summons, complaint and motion. The Court further held that that 10-day time period may expire regardless of whether a party has appeared in the action, and regardless of the 20-day period in this case for Craig to respond to the summons and complaint. Finally, the Court held that the computation rules in NRCP 6 controlled the computation of time under SCR 48.1(3), meaning that because the 10-day period under SCR 48.1(3) was less than 11 days, intermediate weekends and holidays should be excluded in computing the 10-day period. Based on this computation, the Court held that Craig’s peremptory challenge was timely filed on the tenth day, May 4, 2012. Writ Granted. (Megan Starich, Associate in the Reno office of McDonald Carano Wilson.)
In this petition for writ of mandamus, the Court considered the time period in which a party must file a peremptory challenge. The Real Party in Interest, Kourtney Morrow (“Kourtney”), filed a complaint for divorce from Petitioner Craig Morrow (“Craig”) and a contemporaneous motion for child custody in the Eighth Judicial District Court. Kourtney properly served Craig with the summons, complaint and motion on April 20, 2012. On May 4, 2012, Craig entered an appearance and filed a peremptory challenge. The clerk then reassigned the matter to Judge Cynthia Dianne Steel. Judge Steel rejected the peremptory challenge finding it had not been filed within the 10-day period prescribed by SCR 48.1. Craig then filed a petition for writ of mandamus, challenging the district court’s rejection of his peremptory challenge. The Court examined the appropriateness of a writ in these circumstances, and held that an extraordinary writ petition is an appropriate means to challenge district court decisions concerning peremptory challenges. The Court then examined the time period within which to file a peremptory challenge under SCR 48.1(3), which states that “the peremptory challenge shall be filed: (a) within 10 days after notification to the parties of a trial or hearing date; or (b) not less than 3 days before the date set for the hearing of any contested pretrial matter, whichever occurs first.” The Court held that the 10-day time period begins to run upon proper notice of a hearing, and that proper notice in this case occurred when Craig was properly served with the summons, complaint and motion. The Court further held that that 10-day time period may expire regardless of whether a party has appeared in the action, and regardless of the 20-day period in this case for Craig to respond to the summons and complaint. Finally, the Court held that the computation rules in NRCP 6 controlled the computation of time under SCR 48.1(3), meaning that because the 10-day period under SCR 48.1(3) was less than 11 days, intermediate weekends and holidays should be excluded in computing the 10-day period. Based on this computation, the Court held that Craig’s peremptory challenge was timely filed on the tenth day, May 4, 2012. Writ Granted. (Megan Starich, Associate in the Reno office of McDonald Carano Wilson.)
Sowers v. Forest Hills Subdivision, 129 Nev. Adv. Op. 9 (Feb. 14, 2013)
Before Chief Justice Pickering and Justices Hardesty and Saitta. Opinion by Justice Hardesty.
In this appeal from a permanent injunction barring the construction of a residential wind turbine, the Court affirmed the district court’s finding that the turbine was a nuisance in fact. The Court clearly rejected the argument that a residential wind turbine could be a nuisance in law, citing public policy and county codes permitting their construction. The Court recognized, however, that a residential wind turbine could be a nuisance in fact if the harm of the proposed construction outweighed its societal value. The factors that the Court considered in evaluating the adverse impact included the noise generated by the turbine and harm to neighborhood property values. The Court held that the aesthetics of a wind turbine alone cannot be the harm evaluated in a nuisance analysis, but courts can consider aesthetics if factors in addition to unsightliness or obstruction of view are alleged. In this case, the negative aesthetics of shadow flicker and the size of the wind turbine, in combination with the noise and diminution in neighborhood property values, constituted an adverse impact that far outweighed the potential utility of the turbine. The Court emphasized that the utility of the wind turbine was limited because only the one homeowner would benefit from its construction. Concluding that substantial evidence existed in the record to support the district court’s findings on all of those points, the Court affirmed the permanent injunction. Affirmed. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
In this appeal from a permanent injunction barring the construction of a residential wind turbine, the Court affirmed the district court’s finding that the turbine was a nuisance in fact. The Court clearly rejected the argument that a residential wind turbine could be a nuisance in law, citing public policy and county codes permitting their construction. The Court recognized, however, that a residential wind turbine could be a nuisance in fact if the harm of the proposed construction outweighed its societal value. The factors that the Court considered in evaluating the adverse impact included the noise generated by the turbine and harm to neighborhood property values. The Court held that the aesthetics of a wind turbine alone cannot be the harm evaluated in a nuisance analysis, but courts can consider aesthetics if factors in addition to unsightliness or obstruction of view are alleged. In this case, the negative aesthetics of shadow flicker and the size of the wind turbine, in combination with the noise and diminution in neighborhood property values, constituted an adverse impact that far outweighed the potential utility of the turbine. The Court emphasized that the utility of the wind turbine was limited because only the one homeowner would benefit from its construction. Concluding that substantial evidence existed in the record to support the district court’s findings on all of those points, the Court affirmed the permanent injunction. Affirmed. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
Building Energetix Corp. v. EHE LP, 129 Nev. Adv. Op. 6 (Feb. 14, 2013)
Before Chief Justice Pickering and Justices Hardesty and Cherry. Opinion by Chief Justice Pickering.
In this appeal, the Court considered two issues: (1) the validity of a nonjudicial foreclosure sale when a delinquent-tax certificate or a tax deed encumbers the property; and (2) the ability of the purchaser of such property at the foreclosure sale to redeem the property from a county treasurer. The Court held that a delinquent-tax certificate does not prevent nonjudicial foreclosure because ownership of a property does not transfer when a delinquent-tax certificate issues. Ownership does not even transfer after the two-year statutory period passes without redemption of the property and a county treasurer issues a tax deed of the property. Rather, ownership of a property encumbered by a delinquent-tax certificate or a tax deed remains with the parties who otherwise hold an interest in the property. That interest does not extinguish until “the county gives notice of sale or otherwise finally disposes of the property.” The Court then held that a party who purchases a property at foreclosure sale may redeem it from a county treasurer. The Court clarified that the language in NRS 107.080(5), which states that the purchase at a nonjudicial foreclosure sale is without the right of redemption, prevents a debtor from exercising a right of redemption against the purchaser, not a purchaser from later redeeming the property from the county. Affirmed. (Chris Stanko, Summer Law Clerk in the Reno office of McDonald Carano Wilson.)
In this appeal, the Court considered two issues: (1) the validity of a nonjudicial foreclosure sale when a delinquent-tax certificate or a tax deed encumbers the property; and (2) the ability of the purchaser of such property at the foreclosure sale to redeem the property from a county treasurer. The Court held that a delinquent-tax certificate does not prevent nonjudicial foreclosure because ownership of a property does not transfer when a delinquent-tax certificate issues. Ownership does not even transfer after the two-year statutory period passes without redemption of the property and a county treasurer issues a tax deed of the property. Rather, ownership of a property encumbered by a delinquent-tax certificate or a tax deed remains with the parties who otherwise hold an interest in the property. That interest does not extinguish until “the county gives notice of sale or otherwise finally disposes of the property.” The Court then held that a party who purchases a property at foreclosure sale may redeem it from a county treasurer. The Court clarified that the language in NRS 107.080(5), which states that the purchase at a nonjudicial foreclosure sale is without the right of redemption, prevents a debtor from exercising a right of redemption against the purchaser, not a purchaser from later redeeming the property from the county. Affirmed. (Chris Stanko, Summer Law Clerk in the Reno office of McDonald Carano Wilson.)
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