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.)
Thursday, October 31, 2013
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.)
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