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).
Thursday, July 11, 2013
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).
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