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).
Thursday, April 25, 2013
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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