Before the Court en banc. Opinion by Justice Saitta.
Respondent Arthur E. Mallory (“Respondent”) is Churchill County’s district attorney. He was first elected to the office in 1998 and was elected to a fourth consecutive four-year term of office in 2010. Following the most recent reelection, Appellant John O’Connor (“Appellant”) filed a petition to set aside Respondent’s reelection due to term limitations under the Nevada Constitution. The issue presented in this appeal is whether the office of district attorney is a state office for the purpose of determining whether district attorneys are subject to term limits under the “state office” portion of Article 15, Section 3(2) of the Nevada Constitution. Under Article 15, Section 3(2) of the Nevada Constitution, individuals elected to a “state office” or “local governing body” may only serve for 12 years unless the Constitution provides otherwise. The Nevada Supreme Court determined, without need to rely on Secretary of State v. Burk, 124 Nev. 579, 188 P.3d 1112 (2008), as done by the district court, that Article 4, Section 32 of the Nevada Constitution addresses the Legislature’s authority to provide for and abolish certain county offices including “District Attorneys.” By identifying district attorneys as county officers, it necessarily follows that the office of district attorney cannot be considered a “state office.” Thus, the office of district attorney is not subject to the term-limit provision of Article 15, Section 3(2). Affirmed. (Lisa M. Wiltshire, Associate in the Reno office of McDonald Carano Wilson LLP).
Thursday, August 9, 2012
Washoe County v. Otto, 128 Nev. Adv. Op. 40 (Aug. 9, 2012)
Before the Court en banc (Justice Pickering recused). Opinion by Justice Hardesty.
In this appeal, another case in the continuing saga of challenges to property taxes in Incline Village, the Court held that a party must strictly comply with the Nevada Administrative Procedure Act naming requirement found at NRS 233B.130(2)(a), as a prerequisite to invoke the district court’s jurisdiction. When a petitioner fails to name in its petition each party of record to the underlying administrative proceedings, the petition is jurisdictionally defective and must be dismissed. Further, if the petitioner fails to invoke the district court’s jurisdiction by naming the proper parties within the statutory time limit, the petition may not subsequently be amended to cure the jurisdictional defect. Affirmed. (Brent Keele, Associate in the Reno office of McDonald Carano Wilson LLP).
In this appeal, another case in the continuing saga of challenges to property taxes in Incline Village, the Court held that a party must strictly comply with the Nevada Administrative Procedure Act naming requirement found at NRS 233B.130(2)(a), as a prerequisite to invoke the district court’s jurisdiction. When a petitioner fails to name in its petition each party of record to the underlying administrative proceedings, the petition is jurisdictionally defective and must be dismissed. Further, if the petitioner fails to invoke the district court’s jurisdiction by naming the proper parties within the statutory time limit, the petition may not subsequently be amended to cure the jurisdictional defect. Affirmed. (Brent Keele, Associate in the Reno office of McDonald Carano Wilson LLP).
Liapis v. Dist. Ct., 128 Nev. Adv. Op. 39 (Aug. 9, 2012)
Before Justices Cherry, Pickering, and Hardesty. Opinion by Justice Hardesty.
In this original petition for writ of mandamus, the Court faced two novel issues: should an attorney who represents one of his parents in a divorce action between both parents be disqualified either (1) because the attorney’s representation will constitute the appearance of impropriety or (2) because representing the parent will violate the concurrent-conflict-of-interest rule in Nevada Rule of Professional Conduct (RPC) 1.7? In answering the first issue, the Court held that there was no disqualifying appearance of impropriety because the appearance of impropriety is no longer recognized by the American Bar Association and the Court has not recognized the appearance of impropriety as a basis for disqualifying counsel except in the limited circumstance of a public lawyer. Thus, as a general matter, an appearance of impropriety without more does not support a lawyer’s disqualification. The Court resolved the second issue by holding there was no violation of RPC 1.7 unless there was an ethical breach by the attorney that affects the fairness of the entire litigation or a proven confidential relationship between the nonclient parent and the attorney. Moreover, the Court held that the nonclient parent did not have standing to assert a conflict claim, largely because she was not a former or current client of her son, the mother-son relationship did not establish a confidential relationship, and there was no suggestion of any other legally recognizable confidential relationship. Because the district court manifestly abused its discretion in disqualifying counsel, the court granted the appellant’s petition and instructed the district court to vacate its order granting Respondent’s motion to disqualify counsel. (Rory T. Kay, Associate in the Las Vegas office of McDonald Carano Wilson LLP).
In this original petition for writ of mandamus, the Court faced two novel issues: should an attorney who represents one of his parents in a divorce action between both parents be disqualified either (1) because the attorney’s representation will constitute the appearance of impropriety or (2) because representing the parent will violate the concurrent-conflict-of-interest rule in Nevada Rule of Professional Conduct (RPC) 1.7? In answering the first issue, the Court held that there was no disqualifying appearance of impropriety because the appearance of impropriety is no longer recognized by the American Bar Association and the Court has not recognized the appearance of impropriety as a basis for disqualifying counsel except in the limited circumstance of a public lawyer. Thus, as a general matter, an appearance of impropriety without more does not support a lawyer’s disqualification. The Court resolved the second issue by holding there was no violation of RPC 1.7 unless there was an ethical breach by the attorney that affects the fairness of the entire litigation or a proven confidential relationship between the nonclient parent and the attorney. Moreover, the Court held that the nonclient parent did not have standing to assert a conflict claim, largely because she was not a former or current client of her son, the mother-son relationship did not establish a confidential relationship, and there was no suggestion of any other legally recognizable confidential relationship. Because the district court manifestly abused its discretion in disqualifying counsel, the court granted the appellant’s petition and instructed the district court to vacate its order granting Respondent’s motion to disqualify counsel. (Rory T. Kay, Associate in the Las Vegas office of McDonald Carano Wilson LLP).
Bonnell v. Lawrence, 128 Nev. Adv. Op. 37, 282 P.3d 712 (Aug. 9, 2012)
Before Justices Cherry, Pickering, and Hardesty. Opinion by Justice Pickering.
In this appeal, the Court addressed the standard required for a party who brings an independent action for relief of judgment under NRCP 60(b). NRCP 60(b) permits relief from judgment by either motion or an independent action. While motions for relief from judgment are governed by specific time deadlines, the reference to an independent action is made only in a savings clause in NRCP 60(b), which states that the rule does not preclude courts from entertaining an independent action to relieve a party from judgment. Since the strict timelines of NRCP 60(b) do not apply to independent actions, the Court explained, such an action should be available only to prevent a “grave miscarriage of justice.” The Court held that in this case, Bonnell’s allegations of inadequate notice regarding summary judgment did not constitute the “grave miscarriage of justice” required to sustain an independent action under NRCP 60(b). Moreover, the Court noted that Respondents’ counsel’s actions did not excuse Bonnell’s failure to bring a motion for relief under NRCP 60(b) within the Rule’s 6-month period. Failing to find anything in the record of either suit that would suggest the threat of a “grave miscarriage of justice,” the Supreme Court affirmed the district court’s dismissal of the independent action. Affirmed. (Jeff S. Riesenmy, Associate in the Las Vegas office of McDonald Carano Wilson.)
In this appeal, the Court addressed the standard required for a party who brings an independent action for relief of judgment under NRCP 60(b). NRCP 60(b) permits relief from judgment by either motion or an independent action. While motions for relief from judgment are governed by specific time deadlines, the reference to an independent action is made only in a savings clause in NRCP 60(b), which states that the rule does not preclude courts from entertaining an independent action to relieve a party from judgment. Since the strict timelines of NRCP 60(b) do not apply to independent actions, the Court explained, such an action should be available only to prevent a “grave miscarriage of justice.” The Court held that in this case, Bonnell’s allegations of inadequate notice regarding summary judgment did not constitute the “grave miscarriage of justice” required to sustain an independent action under NRCP 60(b). Moreover, the Court noted that Respondents’ counsel’s actions did not excuse Bonnell’s failure to bring a motion for relief under NRCP 60(b) within the Rule’s 6-month period. Failing to find anything in the record of either suit that would suggest the threat of a “grave miscarriage of justice,” the Supreme Court affirmed the district court’s dismissal of the independent action. Affirmed. (Jeff S. Riesenmy, Associate in the Las Vegas office of McDonald Carano Wilson.)
DeBoer v. Sr. Bridges of Sparks Fam. Hosp., 128 Nev. Adv. Op. 38 (Aug. 9, 2012)
Before Justices Cherry, Pickering, and Hardesty.
Opinion by Justice Cherry.
In this appeal, the court examined the duty of care owed by a medical facility when performing nonmedical functions. The Named Appellant, as guardian for a cognitively impaired adult, appealed the district court’s dismissal of a negligence action brought against a senior care facility in connection with the execution of a power of attorney that resulted in Appellant being injured by a third party. An employee of Respondent facilitated a power of attorney in favor of a third party, which was signed by Appellant. The third party financially exploited Appellant, and Appellant sued Respondent for breaching its duty of care by allowing Appellant to sign the power of attorney, when a reasonable investigation would have established that Appellant lacked the requisite mental competence to protect herself from exploitation. The district court dismissed the claim pursuant to a NRCP 12(b)(5) motion, finding that Respondent owed Appellant no duty beyond providing competent medical care. On appeal, the Supreme Court overturned the dismissal, establishing that because immunity from general liability cannot be enjoyed simply due to one’s legal status, medical facilities are required to conform to normal standards of reasonableness under general principles of tort law when performing nonmedical functions. Because potential factual issues existed as to whether Respondent acted negligently in carrying out nonmedical functions, the court reversed and remanded. (Mark Dunagan, Associate in the Reno office of McDonald Carano Wilson LLP).
In this appeal, the court examined the duty of care owed by a medical facility when performing nonmedical functions. The Named Appellant, as guardian for a cognitively impaired adult, appealed the district court’s dismissal of a negligence action brought against a senior care facility in connection with the execution of a power of attorney that resulted in Appellant being injured by a third party. An employee of Respondent facilitated a power of attorney in favor of a third party, which was signed by Appellant. The third party financially exploited Appellant, and Appellant sued Respondent for breaching its duty of care by allowing Appellant to sign the power of attorney, when a reasonable investigation would have established that Appellant lacked the requisite mental competence to protect herself from exploitation. The district court dismissed the claim pursuant to a NRCP 12(b)(5) motion, finding that Respondent owed Appellant no duty beyond providing competent medical care. On appeal, the Supreme Court overturned the dismissal, establishing that because immunity from general liability cannot be enjoyed simply due to one’s legal status, medical facilities are required to conform to normal standards of reasonableness under general principles of tort law when performing nonmedical functions. Because potential factual issues existed as to whether Respondent acted negligently in carrying out nonmedical functions, the court reversed and remanded. (Mark Dunagan, Associate in the Reno office of McDonald Carano Wilson LLP).
Road & Highway Builders v. N. Nev. Rebar, 128 Nev. Adv. Op. 36 (Aug. 9, 2012)
Before Justices Cherry, Gibbons, and Pickering. Opinion by Justice Cherry.
In this appeal, the Court held that a claim for fraudulent inducement is barred as a matter of law if the claim directly contradicts the terms of the written contract. The Court based its conclusion on principles underlying the parol evidence rule and broadly suggested that any claim that is contrary to the written terms of a complete contract would be barred as a matter of law. In addressing compensatory damages for the claims of breach of contract and breach of the covenant of good faith and fair dealing, the Court reiterated that damages for breach of contract should include lost profit or expectancy damages. The Court allowed the award of lost profits for work that had been performed despite the fact that the contract was terminable at will, distinguishing a case that prevented the recovery of lost future profits when a contract is terminable at will. Affirmed in part and reversed in part. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson LLP).
In this appeal, the Court held that a claim for fraudulent inducement is barred as a matter of law if the claim directly contradicts the terms of the written contract. The Court based its conclusion on principles underlying the parol evidence rule and broadly suggested that any claim that is contrary to the written terms of a complete contract would be barred as a matter of law. In addressing compensatory damages for the claims of breach of contract and breach of the covenant of good faith and fair dealing, the Court reiterated that damages for breach of contract should include lost profit or expectancy damages. The Court allowed the award of lost profits for work that had been performed despite the fact that the contract was terminable at will, distinguishing a case that prevented the recovery of lost future profits when a contract is terminable at will. Affirmed in part and reversed in part. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson LLP).
Thursday, August 2, 2012
State, Bus. & Indus. v. Nev. Ass’n Servs., 128 Nev. Adv. Op. 34 (Aug. 2, 2012)
Before Justices Douglas, Gibbons, and Parraguirre. Opinion by Justice Gibbons.
This action arose out of a dispute between the State of Nevada Department of Business and Industry, the Financial Institutions Division and its Commissioner (Department) and Nevada Association Services (NAS). In November 2010, the Department issued an advisory opinion in which it interpreted certain statues within NRS 116, in particular NRS 116.3116, and their importance in the Department’s regulation of collection agencies. NAS filed its complaint and motion for preliminary injunction in district court, arguing that the Department lacked jurisdiction to issue advisory opinions interpreting provisions of NRS Chapter 116. The district court granted NAS’s request for a preliminary injunction. The Court affirmed the district court’s order. In reaching this conclusion, the Court reviewed several sections of NRS 116. Under NRS 116.615, the Court found the language to be clear that the Commission for Common Interest Communities and Condominium Hotels and the Real Estate Division are responsible for regulating and administering the chapter and there is no provision granting any other commission or department the authority to regulate or interpret the language of the chapter. Consequently, the Court found the Department lacked jurisdiction to issue an advisory opinion interpreting NRS Chapter 116 and thus the district court did not abuse its discretion in determining that NAS had a likelihood of success on the merits. Furthermore, the Court held the district court properly determined that the mere act of filing a disciplinary action against NAS would cause irreparable harm. In its findings, the Court explained that it was possible for the Department to revoke NAS’s license without a hearing under its powers , thus if such an instance occurred, NAS would be unable to conduct business during that time which could lead to irreparable harm. Affirmed. (Anthony Carano, Associate in the Reno office of McDonald Carano Wilson LLP).
This action arose out of a dispute between the State of Nevada Department of Business and Industry, the Financial Institutions Division and its Commissioner (Department) and Nevada Association Services (NAS). In November 2010, the Department issued an advisory opinion in which it interpreted certain statues within NRS 116, in particular NRS 116.3116, and their importance in the Department’s regulation of collection agencies. NAS filed its complaint and motion for preliminary injunction in district court, arguing that the Department lacked jurisdiction to issue advisory opinions interpreting provisions of NRS Chapter 116. The district court granted NAS’s request for a preliminary injunction. The Court affirmed the district court’s order. In reaching this conclusion, the Court reviewed several sections of NRS 116. Under NRS 116.615, the Court found the language to be clear that the Commission for Common Interest Communities and Condominium Hotels and the Real Estate Division are responsible for regulating and administering the chapter and there is no provision granting any other commission or department the authority to regulate or interpret the language of the chapter. Consequently, the Court found the Department lacked jurisdiction to issue an advisory opinion interpreting NRS Chapter 116 and thus the district court did not abuse its discretion in determining that NAS had a likelihood of success on the merits. Furthermore, the Court held the district court properly determined that the mere act of filing a disciplinary action against NAS would cause irreparable harm. In its findings, the Court explained that it was possible for the Department to revoke NAS’s license without a hearing under its powers , thus if such an instance occurred, NAS would be unable to conduct business during that time which could lead to irreparable harm. Affirmed. (Anthony Carano, Associate in the Reno office of McDonald Carano Wilson LLP).
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