Before the Court en banc. Opinion by Justice Parraguirre.
In this appeal from a district court order granting a petition for a writ of mandamus, the Court addressed whether individual retiree files that are maintained by Public Employees’ Retirement System of Nevada (“PERS”) are subject to public access. In 2011, the Reno Gazette-Journal (“RGJ”) submitted a public records request to PERS in furtherance of an investigation into government expenditures and the public cost of the retiree pensions. PERS rejected the request asserting that the records were confidential and RGJ responded with a writ petition in district court on the basis that the information was not confidential because it was compiled from public documents. The district court granted RGJ’s petition, concluding that the records sought (e.g. names of retirees, names of government employers, salaries, hire and retirement dates, amounts of pension payments) were not confidential under the applicable statutes (NRS 286.110(3) and 286.117), and further ordered PERS to produce a report that contained the requested information. PERS appealed. The Court considered the scope of confidentiality set forth in NRS 286.110(3), which states, in part: “[t]he official correspondence and records, other than the files of individual members or retired employees,…are public records and are available for public inspection.” (emphasis added). The Court held that the limitation in NRS 286.110(3) must be construed narrowly and only protects an individual’s file itself, but not all information therein merely because it exists in an individual’s file. For example, if the information is contained in other reports, media, etc., the information is not confidential just because the same information exists in an individual’s file. The Court acknowledged that other statutes, rules, or caselaw could form an independent basis for confidentiality; however, PERS did not identify any separate legal authority that would preclude RGJ’s request. The Court also rejected PERS’ alternative argument that the district court erred in concluding that the government’s interest in maintaining confidentiality of the individuals’ files did not outweigh the public’s interest in access to the information. The Court noted that the rationales proffered by PERS (greater risk of identity theft and elder abuse if records disclosed) were not supported by sufficient evidence that actual harm would occur and were merely speculative. The Court vacated the district court’s order to the extent it required PERS to create or customize reports by searching or compiling information. Affirmed in part, vacated in part. (Kristen T. Gallagher, Associate in the Las Vegas office of McDonald Carano Wilson LLP).
Thursday, November 14, 2013
Thursday, November 7, 2013
Sandpointe Apts. v. Eighth Jud. Dist. Ct., 129 Nev. Adv. Op. 87 (Nov. 14, 2013)
Before the Court en banc. Opinion by Justice Saitta.
Justices Cherry and Parraguirre dissented.
In this writ petition, the Court held that NRS 40.459(1)(c), which was added to Nevada’s law by Assembly Bill 273, may not apply retroactively to limit the amount of a deficiency judgment that can be recovered by persons who acquired the right to obtain the judgment from someone else who held that right. The protections of NRS 40.459(1)(c) are therefore only applicable to judicial foreclosures or trustee’s sales occurring on or after the effective date (June 10, 2011) of the statute. Petitioner Sandpointe Apartments, LLC (“Sandpointe”) received a loan from Silver State Bank in 2007 for the construction of an apartment complex. The loan was secured via a deed of trust on the real property and backed by a personal guarantee from Petitioner Stacy Yahraus-Lewis. Silver State Bank closed in 2008 and the Federal Deposit Insurance Corporation (“FDIC”) was appointed as receiver. After Sandpointe had already defaulted on its loan in 2009, the FDIC sold the loan and personal guarantee to Multibank, which then transferred its interest in the loan and guarantee to its wholly owned subsidiary, real party in interest, CML-NV Sandpointe, LLC (“CML-NV”). In early 2011, CML-NV foreclosed on Sandpointe’s loan and purchased the real property securing the loan at a trustee’s sale. Subsequently on June 10, 2011, the Governor signed Assembly Bill 273 into law, which had been unanimously passed by the Nevada Legislature. The relevant provision, codified as NRS 40.459(1)(c), provides that if “the person seeking the [deficiency] judgment acquired the right to obtain the judgment from a person who previously held that right,” then the person seeking the deficiency judgment may only recover “the amount by which the amount of the consideration paid for that right exceeds the fair market value of the property sold at the time of sale or the amount for which the property was actually sold, whichever is greater, with interest from the date of sale and reasonable costs.” CML-NV filed a complaint against Sandpointe and Yahraus-Lewis for deficiency and breach of guaranty on June 27, 2011. At a hearing on cross-motions for summary judgment, the district court concluded that NRS 40.459(1)(c) only applies to loans entered into after June 10, 2011. Thereafter, Sandpointe and Yahraus-Lewis petitioned the Supreme Court for a writ of mandamus or prohibition directing the district court to apply NRS 40.459(1)(c) to CML-NV’s deficiency judgment. Nevada statutes are presumed to operate only prospectively unless the Legislature clearly manifests an intent to apply the statute retroactively or it clearly appears from the statute itself that the Legislature’s intent cannot be implemented in the absence of retroactivity. A statute has retroactive effect when it takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past. The Court held that the right to a deficiency judgment is a vested right as of the date of a trustee’s sale, which is when the amount of a deficiency is fixed. Related statutes, such as NRS 40.462(1), provide that the right to receive proceeds from a foreclosure sale vests at the time of the sale. Thus, the Court found it logical that the right to a judgment for the amount not received in a foreclosure sale would arise, and vest, on the same date as the right to receive amounts received from the sale. Applying NRS 40.459(1)(c) to deficiencies arising from sales prior to the enactment of the statute would affect vested rights and therefore would have an impermissible retroactive effect. An investigation into legislative intent was considered unwarranted by the majority as NRS 40.459(1)(c)’s provision that it becomes effective upon passage and approval is plain and unambiguous. Even if legislative history were consulted though, the majority noted that the author of Assembly Bill 273 stated on several occasions that the legislation could not be applied retroactively. Moreover, the presumption against retroactivity was not considered rebutted simply because the statute would have a broader impact if applied to transactions prior to 2011 as prospective application could still accomplish the legislative intent with respect to many loans. The Court rejected Petitioners’ argument that NRS 40.459(1)(c) is not retroactive because the statute merely clarifies existing law. Although another statute, NRS 40.451, limits a lien amount to the amount of consideration paid, the Court noted that the lien amount is only one factor determining the total amount of indebtedness, which is the figure used to determine the deficiency judgment amount. Additionally, the Court distinguished NRS 40.459(1)(c) as applicable to guarantors unlike NRS 40.451. Justices Cherry and Parraguirre dissented from the majority holding and would have granted the writ petition on the basis that the real party in interest had not yet obtained a deficiency judgment. The dissent argued that NRS 40.459(1)(c) applies at the time that a deficiency judgment is lawfully obtained and that until such judgment, a creditor only has a contingent remedy for potential deficiency and not a vested right. The dissent found persuasive the statement in the Legislative Counsel Digest that the provisions of Assembly Bill 273 would “apply to a deficiency judgment awarded on or after” the effective date and the Legislature’s corresponding declaration in its amicus curiae brief that it intended NRS 40.459(1)(c) to apply to every deficiency judgment awarded on or after the effective date. Noting the policy rationales of stopping profiteering activities and ensuring fairness to all parties to a transaction secured by realty, the dissent criticized the majority opinion for ignoring these objectives and denying protection to borrowers and guarantors who were the intended beneficiaries of the legislation. Petition denied. (Adam Hosmer-Henner, Associate in the Reno office of McDonald Carano Wilson.)
In this writ petition, the Court held that NRS 40.459(1)(c), which was added to Nevada’s law by Assembly Bill 273, may not apply retroactively to limit the amount of a deficiency judgment that can be recovered by persons who acquired the right to obtain the judgment from someone else who held that right. The protections of NRS 40.459(1)(c) are therefore only applicable to judicial foreclosures or trustee’s sales occurring on or after the effective date (June 10, 2011) of the statute. Petitioner Sandpointe Apartments, LLC (“Sandpointe”) received a loan from Silver State Bank in 2007 for the construction of an apartment complex. The loan was secured via a deed of trust on the real property and backed by a personal guarantee from Petitioner Stacy Yahraus-Lewis. Silver State Bank closed in 2008 and the Federal Deposit Insurance Corporation (“FDIC”) was appointed as receiver. After Sandpointe had already defaulted on its loan in 2009, the FDIC sold the loan and personal guarantee to Multibank, which then transferred its interest in the loan and guarantee to its wholly owned subsidiary, real party in interest, CML-NV Sandpointe, LLC (“CML-NV”). In early 2011, CML-NV foreclosed on Sandpointe’s loan and purchased the real property securing the loan at a trustee’s sale. Subsequently on June 10, 2011, the Governor signed Assembly Bill 273 into law, which had been unanimously passed by the Nevada Legislature. The relevant provision, codified as NRS 40.459(1)(c), provides that if “the person seeking the [deficiency] judgment acquired the right to obtain the judgment from a person who previously held that right,” then the person seeking the deficiency judgment may only recover “the amount by which the amount of the consideration paid for that right exceeds the fair market value of the property sold at the time of sale or the amount for which the property was actually sold, whichever is greater, with interest from the date of sale and reasonable costs.” CML-NV filed a complaint against Sandpointe and Yahraus-Lewis for deficiency and breach of guaranty on June 27, 2011. At a hearing on cross-motions for summary judgment, the district court concluded that NRS 40.459(1)(c) only applies to loans entered into after June 10, 2011. Thereafter, Sandpointe and Yahraus-Lewis petitioned the Supreme Court for a writ of mandamus or prohibition directing the district court to apply NRS 40.459(1)(c) to CML-NV’s deficiency judgment. Nevada statutes are presumed to operate only prospectively unless the Legislature clearly manifests an intent to apply the statute retroactively or it clearly appears from the statute itself that the Legislature’s intent cannot be implemented in the absence of retroactivity. A statute has retroactive effect when it takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past. The Court held that the right to a deficiency judgment is a vested right as of the date of a trustee’s sale, which is when the amount of a deficiency is fixed. Related statutes, such as NRS 40.462(1), provide that the right to receive proceeds from a foreclosure sale vests at the time of the sale. Thus, the Court found it logical that the right to a judgment for the amount not received in a foreclosure sale would arise, and vest, on the same date as the right to receive amounts received from the sale. Applying NRS 40.459(1)(c) to deficiencies arising from sales prior to the enactment of the statute would affect vested rights and therefore would have an impermissible retroactive effect. An investigation into legislative intent was considered unwarranted by the majority as NRS 40.459(1)(c)’s provision that it becomes effective upon passage and approval is plain and unambiguous. Even if legislative history were consulted though, the majority noted that the author of Assembly Bill 273 stated on several occasions that the legislation could not be applied retroactively. Moreover, the presumption against retroactivity was not considered rebutted simply because the statute would have a broader impact if applied to transactions prior to 2011 as prospective application could still accomplish the legislative intent with respect to many loans. The Court rejected Petitioners’ argument that NRS 40.459(1)(c) is not retroactive because the statute merely clarifies existing law. Although another statute, NRS 40.451, limits a lien amount to the amount of consideration paid, the Court noted that the lien amount is only one factor determining the total amount of indebtedness, which is the figure used to determine the deficiency judgment amount. Additionally, the Court distinguished NRS 40.459(1)(c) as applicable to guarantors unlike NRS 40.451. Justices Cherry and Parraguirre dissented from the majority holding and would have granted the writ petition on the basis that the real party in interest had not yet obtained a deficiency judgment. The dissent argued that NRS 40.459(1)(c) applies at the time that a deficiency judgment is lawfully obtained and that until such judgment, a creditor only has a contingent remedy for potential deficiency and not a vested right. The dissent found persuasive the statement in the Legislative Counsel Digest that the provisions of Assembly Bill 273 would “apply to a deficiency judgment awarded on or after” the effective date and the Legislature’s corresponding declaration in its amicus curiae brief that it intended NRS 40.459(1)(c) to apply to every deficiency judgment awarded on or after the effective date. Noting the policy rationales of stopping profiteering activities and ensuring fairness to all parties to a transaction secured by realty, the dissent criticized the majority opinion for ignoring these objectives and denying protection to borrowers and guarantors who were the intended beneficiaries of the legislation. Petition denied. (Adam Hosmer-Henner, Associate in the Reno office of McDonald Carano Wilson.)
Otak Nevada, LLC v. Eighth Jud. Dist. Ct., 129 Nev. Adv. Op. 86 (Nov. 7, 2013)
Before the Court en banc. Opinion by Justice Hardesty.
This original petition for writ of mandamus arose out of district court litigation pertaining to a fatal automobile accident at a construction site in Las Vegas. Otak Nevada, LLC (“Otak”) was the architect on the project; Real Parties in Interest Cheyenne Apartments, PPG, LP, Pacificap Holdings XXIX, LLC, Pacificap Properties Group, LLC, and Chad Rennaker and Jason Rennaker (collectively, “Owners”) were the owners and developers, and Pacificap Construction Services, LLC (the “Contractor”) was the general contractor. Otak entered into an agreement with the Owners to design a multifamily housing project, then subcontracted with an engineering firm to design traffic medians and replace traffic markers near the construction site. The accident occurred because one of the medians was not installed and the traffic markers were not replaced. The plaintiffs eventually agreed to settle their claims against Otak for $210,000.00, after which Otak filed a motion to approve a good-faith settlement. The district court granted the motion and rejected the Owners’ and Contractor’s arguments that the settlement would unfairly shift Otak’s liability to them, and that the proposed amount of the settlement was less than Otak’s potential liability or its insurance policy limits. Thereafter, the court granted the Owners leave to file a third party complaint against Otak, which Otak moved to dismiss on the grounds that all proposed claims were barred by NRS 17.245. Otak filed its writ petition after the district court denied Otak’s motion to dismiss. The Court first determined that the evidence in the record demonstrated that Otak’s liability was minimal: Otak was not contractually required to visit the site to report unsafe conditions, nor was it contractually responsible for safety programs or precautions. Moreover, Otak did not breach any duties that it owed to any of the parties, and it was not involved in, or responsible for, the road construction that resulted in the accident. The Court also noted that insurance policy limits are not “exclusive criteria in determining whether a settlement is in good faith,” and the fact that a settlement may eliminate third party liability does not mean that the settlement was made in bad faith. Therefore, the district court did not abuse its discretion by granting Otak’s motion for approval of good-faith settlement. Next, the Court examined NRS 17.245(1)(b), which “discharges the tortfeasor to whom [a release from liability] is given from all liability for contribution and for equitable indemnity to any other tortfeasor.” The Court noted that the statute “does not state whether ‘contribution’ [an equitable sharing of liability] or ‘equitable indemnity [a complete shift of liability to the party that is primarily responsible] only include claims titled as such, or whether NRS 17.245(1)(b)’s bar encompasses all theories of recovery that seek contribution or equitable indemnity, regardless of the claim’s actual title.” In holding that the statute requires that latter, the Court first noted that the purpose of the Uniform Contribution Act Among Tortfeasors was to “permit plaintiffs to sever a joint tortfeasor from the case without needing to first reach a global settlement with all of the defendants.” Next, the Court observed that the Nevada Legislature amended NRS 17.245 in 1997; prior to that time, the statute barred a non-settling defendant from seeking contribution from a settling defendant, but permitted claims for equitable indemnity. The legislative history revealed that the amendment was made “to eliminate [equitable indemnity as a] defense and promote and encourage settlements among joint defendants.” Thus, the Court concluded that after a defendant has settled in good faith, 17.245(1)(b) bars all claims that seek contribution or equitable indemnity damages from that defendant, regardless of how those claims are titled. The Court also held that because NRS 17.245(1)(b) does not distinguish between equitable and contractual contribution claims, all contribution claims are barred by the approval of a good-faith settlement. In determining whether a claim seeks contribution or equitable indemnity, district courts should consider whether “(1) the claim arose from the same basis on which the settling defendant would be liable to the plaintiff, and (2) the claim seeks damages comparable to those recoverable in contribution or indemnity actions.” In light of this standard, the Court concluded that the Owners’ claim for express (contractual) indemnity was actually a claim for contribution, because the contractual provision at issue apportioned liability according to fault rather than shifting liability to the party that was primarily responsible for damages. Therefore, the Owners could not prevail on this claim. Likewise, because the Owners did not seek any damages from Otak that were unrelated to the accident, nor did the Owners allege that Otak breached any duties to them “on a basis other than that Otak was potentially responsible for the plaintiffs’ accident,” its contract-based claims were actually claims for contribution. Those claims were also barred by the statute. Petition granted. (Patrick Murch, Associate in the Las Vegas office of McDonald Carano Wilson).
This original petition for writ of mandamus arose out of district court litigation pertaining to a fatal automobile accident at a construction site in Las Vegas. Otak Nevada, LLC (“Otak”) was the architect on the project; Real Parties in Interest Cheyenne Apartments, PPG, LP, Pacificap Holdings XXIX, LLC, Pacificap Properties Group, LLC, and Chad Rennaker and Jason Rennaker (collectively, “Owners”) were the owners and developers, and Pacificap Construction Services, LLC (the “Contractor”) was the general contractor. Otak entered into an agreement with the Owners to design a multifamily housing project, then subcontracted with an engineering firm to design traffic medians and replace traffic markers near the construction site. The accident occurred because one of the medians was not installed and the traffic markers were not replaced. The plaintiffs eventually agreed to settle their claims against Otak for $210,000.00, after which Otak filed a motion to approve a good-faith settlement. The district court granted the motion and rejected the Owners’ and Contractor’s arguments that the settlement would unfairly shift Otak’s liability to them, and that the proposed amount of the settlement was less than Otak’s potential liability or its insurance policy limits. Thereafter, the court granted the Owners leave to file a third party complaint against Otak, which Otak moved to dismiss on the grounds that all proposed claims were barred by NRS 17.245. Otak filed its writ petition after the district court denied Otak’s motion to dismiss. The Court first determined that the evidence in the record demonstrated that Otak’s liability was minimal: Otak was not contractually required to visit the site to report unsafe conditions, nor was it contractually responsible for safety programs or precautions. Moreover, Otak did not breach any duties that it owed to any of the parties, and it was not involved in, or responsible for, the road construction that resulted in the accident. The Court also noted that insurance policy limits are not “exclusive criteria in determining whether a settlement is in good faith,” and the fact that a settlement may eliminate third party liability does not mean that the settlement was made in bad faith. Therefore, the district court did not abuse its discretion by granting Otak’s motion for approval of good-faith settlement. Next, the Court examined NRS 17.245(1)(b), which “discharges the tortfeasor to whom [a release from liability] is given from all liability for contribution and for equitable indemnity to any other tortfeasor.” The Court noted that the statute “does not state whether ‘contribution’ [an equitable sharing of liability] or ‘equitable indemnity [a complete shift of liability to the party that is primarily responsible] only include claims titled as such, or whether NRS 17.245(1)(b)’s bar encompasses all theories of recovery that seek contribution or equitable indemnity, regardless of the claim’s actual title.” In holding that the statute requires that latter, the Court first noted that the purpose of the Uniform Contribution Act Among Tortfeasors was to “permit plaintiffs to sever a joint tortfeasor from the case without needing to first reach a global settlement with all of the defendants.” Next, the Court observed that the Nevada Legislature amended NRS 17.245 in 1997; prior to that time, the statute barred a non-settling defendant from seeking contribution from a settling defendant, but permitted claims for equitable indemnity. The legislative history revealed that the amendment was made “to eliminate [equitable indemnity as a] defense and promote and encourage settlements among joint defendants.” Thus, the Court concluded that after a defendant has settled in good faith, 17.245(1)(b) bars all claims that seek contribution or equitable indemnity damages from that defendant, regardless of how those claims are titled. The Court also held that because NRS 17.245(1)(b) does not distinguish between equitable and contractual contribution claims, all contribution claims are barred by the approval of a good-faith settlement. In determining whether a claim seeks contribution or equitable indemnity, district courts should consider whether “(1) the claim arose from the same basis on which the settling defendant would be liable to the plaintiff, and (2) the claim seeks damages comparable to those recoverable in contribution or indemnity actions.” In light of this standard, the Court concluded that the Owners’ claim for express (contractual) indemnity was actually a claim for contribution, because the contractual provision at issue apportioned liability according to fault rather than shifting liability to the party that was primarily responsible for damages. Therefore, the Owners could not prevail on this claim. Likewise, because the Owners did not seek any damages from Otak that were unrelated to the accident, nor did the Owners allege that Otak breached any duties to them “on a basis other than that Otak was potentially responsible for the plaintiffs’ accident,” its contract-based claims were actually claims for contribution. Those claims were also barred by the statute. Petition granted. (Patrick Murch, Associate in the Las Vegas office of McDonald Carano Wilson).
Humphries v. Eighth Jud. Dist. Ct., 129 Nev. Adv. Op. 85 (Nov. 7, 2013)
Before Justices Hardesty, Parraguirre and Cherry. Opinion by Justice Parraguirre.
In this petition for writ of mandamus, the Court considered whether the district court erred in compelling petitioners (Carey Humphries and Lorenza Rocha, II) to join an intentional tortfeasor (Erik Ferrell) as a necessary party in petitioners’ action against a negligent cotortfeasor (New York-New York). Ferrell and petitioners were involved in an altercation at New York-New York after which Ferrell was arrested and convicted for battery. Petitioners sued New York-New York for negligence. The complaint did not include any claims against Ferrell. New York-New York asserted petitioners’ comparative negligence as an affirmative defense and argued that Ferrell was a necessary party for determining comparative negligence under NRS 41.141. The Court focused its inquiry on whether the absence of a cotortfeasor eliminates the requirement for apportionment of liability as set forth in NRS 41.141(2)(b)(2). In answering in the affirmative, the Court noted that a plaintiff who sues one tortfeasor may recover 100% of damages from that tortfeasor even if another, absent tortfeasor is also at fault. Given this finding, the Court concluded that it can accord complete relief to all parties even when a cotortfeasor is not named in the action. Thus, an absent cotortfeasor is not a necessary party under NRCP 19(a) when a jointly and severally liable defendant is sued. The Court noted that although petitioners would not be compelled to join Ferrell as a codefendant, New York-New York was free to implead Ferrell based on the theory of contribution. Petition granted. (Amanda M. Perach, Associate in the Las Vegas office of McDonald Carano Wilson).
In this petition for writ of mandamus, the Court considered whether the district court erred in compelling petitioners (Carey Humphries and Lorenza Rocha, II) to join an intentional tortfeasor (Erik Ferrell) as a necessary party in petitioners’ action against a negligent cotortfeasor (New York-New York). Ferrell and petitioners were involved in an altercation at New York-New York after which Ferrell was arrested and convicted for battery. Petitioners sued New York-New York for negligence. The complaint did not include any claims against Ferrell. New York-New York asserted petitioners’ comparative negligence as an affirmative defense and argued that Ferrell was a necessary party for determining comparative negligence under NRS 41.141. The Court focused its inquiry on whether the absence of a cotortfeasor eliminates the requirement for apportionment of liability as set forth in NRS 41.141(2)(b)(2). In answering in the affirmative, the Court noted that a plaintiff who sues one tortfeasor may recover 100% of damages from that tortfeasor even if another, absent tortfeasor is also at fault. Given this finding, the Court concluded that it can accord complete relief to all parties even when a cotortfeasor is not named in the action. Thus, an absent cotortfeasor is not a necessary party under NRCP 19(a) when a jointly and severally liable defendant is sued. The Court noted that although petitioners would not be compelled to join Ferrell as a codefendant, New York-New York was free to implead Ferrell based on the theory of contribution. Petition granted. (Amanda M. Perach, Associate in the Las Vegas office of McDonald Carano Wilson).
Elizondo v. Hood Mach., Inc., 129 Nev. Adv. Op. 84 (Nov. 7, 2013)
Before Justices Hardesty, Parraguirre, and Cherry. Opinion by Justice Hardesty.
In this appeal, the Court considered whether an appeals officer’s conclusory order in a workers’ compensation matter failed to meet the statutory requirements of NRS 233B.125 by not including findings of fact and conclusions of law. NRS 233B.125 governs adverse written orders in administrative proceedings and states that “a final decision must include findings of facts and conclusions of law, separately stated.” The Court concluded that the appeals officer’s order was deficient by omitting specific findings of fact or citation to the law as required by the plain and unambiguous language of NRS 233B.125. The Court also analyzed whether the doctrines of claim and issue preclusion compelled dismissal of Appellant’s fourth attempt to reopen an industrial injury claim. NRS 616C.390 provided Appellant with a statutory right to request the reopening of his claim and upon written application, the insurer was required to reopen a claim based on a change of circumstances. The Court concluded that the appeals officer erred by applying the doctrines of issue and claim preclusion because the proper analysis is whether there is a change of circumstances. Accordingly, the district court’s rejection of the request to reopen Elizondo’s claim on preclusion grounds was in error. Reversed and remanded. (Lisa M. Wiltshire Alstead, Associate in the Reno office of McDonald Carano Wilson LLP.)
In this appeal, the Court considered whether an appeals officer’s conclusory order in a workers’ compensation matter failed to meet the statutory requirements of NRS 233B.125 by not including findings of fact and conclusions of law. NRS 233B.125 governs adverse written orders in administrative proceedings and states that “a final decision must include findings of facts and conclusions of law, separately stated.” The Court concluded that the appeals officer’s order was deficient by omitting specific findings of fact or citation to the law as required by the plain and unambiguous language of NRS 233B.125. The Court also analyzed whether the doctrines of claim and issue preclusion compelled dismissal of Appellant’s fourth attempt to reopen an industrial injury claim. NRS 616C.390 provided Appellant with a statutory right to request the reopening of his claim and upon written application, the insurer was required to reopen a claim based on a change of circumstances. The Court concluded that the appeals officer erred by applying the doctrines of issue and claim preclusion because the proper analysis is whether there is a change of circumstances. Accordingly, the district court’s rejection of the request to reopen Elizondo’s claim on preclusion grounds was in error. Reversed and remanded. (Lisa M. Wiltshire Alstead, Associate in the Reno office of McDonald Carano Wilson LLP.)
Thursday, October 31, 2013
Civil Rights for Seniors v. AOC, 129 Nev. Adv. Op. 80 (Oct. 31, 2013)
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.)
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.)
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.)
Thursday, September 19, 2013
Vanguard Piping v. Eighth Jud. Dist. Ct., 129 Nev. Adv. Op. 63 (Sept. 19, 2013)
Before the Court en banc (Justice Parraguirre recused). Opinion by Justice Hardesty.
In this original petition for writ of mandamus or prohibition, petitioners Vanguard Piping Systems, Inc., Viega, LLC, Industries, Inc., and Viega, Inc. (collectively, Vanguard) challenged a district court order compelling Vanguard to produce all insurance policies that might be used to satisfy a judgment against Vanguard in a construction defect action brought by Aventine-Tramonti Homeowners Association (the HOA). Vanguard contended that it was not required to disclose insurance policies purchased by its German parent companies, Viega GmbH and Viega International GmbH, because Vanguard’s primary insurance policies were sufficient to cover any judgment that might be entered against Vanguard. Following the plain language of the rule and applying the federal courts’ interpretation of the similar federal rule, the Court held that NRCP 16.1(a)(1)(D) requires parties to disclose any insurance agreement that may be used to satisfy a judgment; “[t]he rule does not mention agreements with policy limits sufficient to satisfy a judgment, nor does it distinguish between primary and secondary insurance policies.” Moreover, permitting parties to determine which insurance agreements are relevant “overlooks the fact that it is impossible to foresee all possible circumstances in which the primary insurance policies will be subject to liability and potentially exhausted by other judgments.” Thus, pursuant to NRCP 16.1(a)(1)(D), a party is required to disclose all insurance policies that may be liable to pay a portion of a judgment, regardless of whether it has already disclosed policies with limits that exceed its potential liability. Petition denied. (Patrick J. Murch, Associate in the Las Vegas office of McDonald Carano Wilson.)
In this original petition for writ of mandamus or prohibition, petitioners Vanguard Piping Systems, Inc., Viega, LLC, Industries, Inc., and Viega, Inc. (collectively, Vanguard) challenged a district court order compelling Vanguard to produce all insurance policies that might be used to satisfy a judgment against Vanguard in a construction defect action brought by Aventine-Tramonti Homeowners Association (the HOA). Vanguard contended that it was not required to disclose insurance policies purchased by its German parent companies, Viega GmbH and Viega International GmbH, because Vanguard’s primary insurance policies were sufficient to cover any judgment that might be entered against Vanguard. Following the plain language of the rule and applying the federal courts’ interpretation of the similar federal rule, the Court held that NRCP 16.1(a)(1)(D) requires parties to disclose any insurance agreement that may be used to satisfy a judgment; “[t]he rule does not mention agreements with policy limits sufficient to satisfy a judgment, nor does it distinguish between primary and secondary insurance policies.” Moreover, permitting parties to determine which insurance agreements are relevant “overlooks the fact that it is impossible to foresee all possible circumstances in which the primary insurance policies will be subject to liability and potentially exhausted by other judgments.” Thus, pursuant to NRCP 16.1(a)(1)(D), a party is required to disclose all insurance policies that may be liable to pay a portion of a judgment, regardless of whether it has already disclosed policies with limits that exceed its potential liability. Petition denied. (Patrick J. Murch, Associate in the Las Vegas office of McDonald Carano Wilson.)
Loeb v. First Jud. Dist. Ct., 129 Nev. Adv. Op. 62 (Sept. 19, 2013)
Before the Court en banc. Opinion by Justice Hardesty.
In this petition for writ of mandamus, the Court addressed whether a party residing outside of the United States whose foreign address is known may be served by publication pursuant to NRCP 4(e)(1)(i) and (iii), rather than pursuant to the terms of the Hague Service Convention. NRCP 4 permits service upon a defendant who resides outside the state by publishing the summons in a Nevada newspaper and mailing a copy of the summons and complaint to the defendant’s residence, if it is known. The Hague Convention, on the other hand, mandates that a party in a foreign country be served either through the central authority of the receiving country, through diplomatic or consular agents that the receiving country considers non-objectionable, or by any method permitted by internal law of the receiving country. Under United States Supreme Court case law, the Hague Convention applies if the state’s service rules require “the transmittal of documents abroad” in order for service to be deemed complete. If the Hague Convention applies, its requirements preempt any inconsistent state law methods of service. Because Petitioners knew the foreign addresses of Real Parties in Interest, Petitioners were required to mail them the documents under NRCP 4(e)(1)(iii). The Court found that under the plain language of NRCP 4(e)(1)(iii), this act constitutes “the transmittal of documents abroad,” triggering the requirements of the Hague Convention. Consequently, the Court held, Petitioners were required to serve Real Parties in Interest pursuant to the requirements of the Hague Convention. Petition denied. (Jeff S. Riesenmy, Associate in the Las Vegas office of McDonald Carano Wilson.)
Congratulations to Matt Addison for his win for the real parties in interest!
In this petition for writ of mandamus, the Court addressed whether a party residing outside of the United States whose foreign address is known may be served by publication pursuant to NRCP 4(e)(1)(i) and (iii), rather than pursuant to the terms of the Hague Service Convention. NRCP 4 permits service upon a defendant who resides outside the state by publishing the summons in a Nevada newspaper and mailing a copy of the summons and complaint to the defendant’s residence, if it is known. The Hague Convention, on the other hand, mandates that a party in a foreign country be served either through the central authority of the receiving country, through diplomatic or consular agents that the receiving country considers non-objectionable, or by any method permitted by internal law of the receiving country. Under United States Supreme Court case law, the Hague Convention applies if the state’s service rules require “the transmittal of documents abroad” in order for service to be deemed complete. If the Hague Convention applies, its requirements preempt any inconsistent state law methods of service. Because Petitioners knew the foreign addresses of Real Parties in Interest, Petitioners were required to mail them the documents under NRCP 4(e)(1)(iii). The Court found that under the plain language of NRCP 4(e)(1)(iii), this act constitutes “the transmittal of documents abroad,” triggering the requirements of the Hague Convention. Consequently, the Court held, Petitioners were required to serve Real Parties in Interest pursuant to the requirements of the Hague Convention. Petition denied. (Jeff S. Riesenmy, Associate in the Las Vegas office of McDonald Carano Wilson.)
Congratulations to Matt Addison for his win for the real parties in interest!
State of Nevada v. Tatalovich, 129 Nev. Adv. Op. 61 (Sept. 19, 2013)
Before the Court en banc. Opinion by Chief Justice Pickering.
In this opinion, the Court considered whether services performed for the purposes of developing and providing expert opinion testimony in a civil case required a private investigator’s license under NRS 648.060. Appellant, State of Nevada Private Investigator’s Licensing Board (the “Board”) cited Respondents for engaging in the business of a private investigator without a Nevada license. Dwayne Tatalovich was hired as an expert witness and in preparation for such testimony, performed several functions which, as the Board asserted, constituted activities of a private investigator. The Court explained that, in Nevada, a person engaging in the business of a private investigator (as defined by NRS 648.012) must obtain a license to do so; however, the Court noted that such licensing restrictions exist to protect the public from unqualified individuals who lack the skills necessary to perform the tasks of professionals in that field. Furthermore, the Court emphasized, such policies are not served by applying the licensing requirements to experts whose credibility and qualifications are tested in court and subject to a separate set of rules. As such, the Court determined that the licensing scheme set forth in NRS 648.060 was never intended to encompass the conduct of expert witnesses performing tasks in preparation for testimony before a court. Importantly, the Court highlighted that, after the Respondents were cited by the Board, the Legislature amended the language of NRS 648.012 to specifically exempt expert witnesses from the licensing requirements of NRS 648.060. Thus, the Court concluded that expert witnesses are not required to obtain licenses to perform investigative work in preparation for developing and giving expert opinion testimony. Affirmed. (Amanda Perach, Associate in the Las Vegas office of McDonald Carano Wilson.)
In this opinion, the Court considered whether services performed for the purposes of developing and providing expert opinion testimony in a civil case required a private investigator’s license under NRS 648.060. Appellant, State of Nevada Private Investigator’s Licensing Board (the “Board”) cited Respondents for engaging in the business of a private investigator without a Nevada license. Dwayne Tatalovich was hired as an expert witness and in preparation for such testimony, performed several functions which, as the Board asserted, constituted activities of a private investigator. The Court explained that, in Nevada, a person engaging in the business of a private investigator (as defined by NRS 648.012) must obtain a license to do so; however, the Court noted that such licensing restrictions exist to protect the public from unqualified individuals who lack the skills necessary to perform the tasks of professionals in that field. Furthermore, the Court emphasized, such policies are not served by applying the licensing requirements to experts whose credibility and qualifications are tested in court and subject to a separate set of rules. As such, the Court determined that the licensing scheme set forth in NRS 648.060 was never intended to encompass the conduct of expert witnesses performing tasks in preparation for testimony before a court. Importantly, the Court highlighted that, after the Respondents were cited by the Board, the Legislature amended the language of NRS 648.012 to specifically exempt expert witnesses from the licensing requirements of NRS 648.060. Thus, the Court concluded that expert witnesses are not required to obtain licenses to perform investigative work in preparation for developing and giving expert opinion testimony. Affirmed. (Amanda Perach, Associate in the Las Vegas office of McDonald Carano Wilson.)
Thursday, August 29, 2013
Bradford v. Eighth Jud. Dist. Ct., 129 Nev. Adv. Op. 60 (Aug. 29, 2013)
Before Chief Justice Pickering and Justices Hardesty and Saitta. Opinion by Justice Hardesty.
In this original petition for a writ of mandamus or prohibition challenging the district court’s order dismissing a divorce complaint, the Court considered whether Petitioner’s failure to appeal the dismissal order precluded writ relief in the matter. Petitioner and Real Party in Interest were married in 2008; a newly elected judge who had taken his oath of office but was not authorized to take office until two weeks later performed the marriage ceremony. Three years later, Petitioner filed for divorce from the Real Party in Interest, seeking custody of the couple’s minor child. At the divorce hearing, the district court sua sponte raised the issue of whether the newly elected judge had authority to solemnize the marriage. The court concluded the judge did not have such authority and thus ruled the parties were not legally married, dismissing the divorce complaint as moot. Although proceedings to determine custody of the parties’ child continued in a separate custody case after the district court entered the dismissal order, Petitioner did not appeal the dismissal order and failed to seek any other relief until a year later, when she sought writ relief from the Nevada Supreme Court. The Nevada Supreme Court, in noting the long-held rule that the right to appeal is an adequate legal remedy precluding consideration of a writ appeal, rejected Petitioner’s argument that the dismissal order was not appealable as a valid, final judgment because the district court had reached an erroneous legal conclusion. Although the Nevada Supreme Court noted that the district court’s conclusion may have been in error, it affirmed that an incorrect legal conclusion does not render a judgment invalid or void, and so the district court’s dismissal order was a valid, final judgment. Petitioner had an adequate legal remedy by appealing the dismissal order. Because she failed to do so, writ relief was no longer available to her. Writ denied. (Rory T. Kay, Associate in the Las Vegas office of McDonald Carano Wilson LLP.)
In this original petition for a writ of mandamus or prohibition challenging the district court’s order dismissing a divorce complaint, the Court considered whether Petitioner’s failure to appeal the dismissal order precluded writ relief in the matter. Petitioner and Real Party in Interest were married in 2008; a newly elected judge who had taken his oath of office but was not authorized to take office until two weeks later performed the marriage ceremony. Three years later, Petitioner filed for divorce from the Real Party in Interest, seeking custody of the couple’s minor child. At the divorce hearing, the district court sua sponte raised the issue of whether the newly elected judge had authority to solemnize the marriage. The court concluded the judge did not have such authority and thus ruled the parties were not legally married, dismissing the divorce complaint as moot. Although proceedings to determine custody of the parties’ child continued in a separate custody case after the district court entered the dismissal order, Petitioner did not appeal the dismissal order and failed to seek any other relief until a year later, when she sought writ relief from the Nevada Supreme Court. The Nevada Supreme Court, in noting the long-held rule that the right to appeal is an adequate legal remedy precluding consideration of a writ appeal, rejected Petitioner’s argument that the dismissal order was not appealable as a valid, final judgment because the district court had reached an erroneous legal conclusion. Although the Nevada Supreme Court noted that the district court’s conclusion may have been in error, it affirmed that an incorrect legal conclusion does not render a judgment invalid or void, and so the district court’s dismissal order was a valid, final judgment. Petitioner had an adequate legal remedy by appealing the dismissal order. Because she failed to do so, writ relief was no longer available to her. Writ denied. (Rory T. Kay, Associate in the Las Vegas office of McDonald Carano Wilson LLP.)
Thursday, August 1, 2013
Khan v. Bakhsh, 129 Nev. Adv. Op. 57 (Aug. 1, 2013)
Before Justices Hardesty, Parraguirre, and Cherry. Opinion by Justice Cherry.
In this appeal from judgment after a bench trial, the Court considered several evidentiary issues dealing with contracts for the sale of real property. First, the Court addressed whether evidence of the terms of an agreement for the sale of property that was written but had been lost or destroyed could be considered without violating the statute of frauds. The Court held that evidence of the existence and terms of the agreement should have been admitted because the statute of frauds was satisfied by the original writing even if that writing was lost or destroyed before trial. Second, the Court addressed the argument that the parol evidence rule barred testimony regarding the fraud used to induce an agreement and testimony regarding the existence of the lost or destroyed agreement. The Court determined that the parol evidence rule does not bar consideration of evidence regarding fraud in the inducement of a contract, to establish subsequent alteration of a contract, or to prove the existence or terms of a written but lost or destroyed agreement. Finally, the Court determined that a liquidated damages provision requiring payment of “150% of actual damages” was an unenforceable penalty. Reversed and remanded. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
In this appeal from judgment after a bench trial, the Court considered several evidentiary issues dealing with contracts for the sale of real property. First, the Court addressed whether evidence of the terms of an agreement for the sale of property that was written but had been lost or destroyed could be considered without violating the statute of frauds. The Court held that evidence of the existence and terms of the agreement should have been admitted because the statute of frauds was satisfied by the original writing even if that writing was lost or destroyed before trial. Second, the Court addressed the argument that the parol evidence rule barred testimony regarding the fraud used to induce an agreement and testimony regarding the existence of the lost or destroyed agreement. The Court determined that the parol evidence rule does not bar consideration of evidence regarding fraud in the inducement of a contract, to establish subsequent alteration of a contract, or to prove the existence or terms of a written but lost or destroyed agreement. Finally, the Court determined that a liquidated damages provision requiring payment of “150% of actual damages” was an unenforceable penalty. Reversed and remanded. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
Moon v. McDonald, Carano & Wilson, L.L.P., 129 Nev. Adv. Op. 56 (Aug. 1, 2013)
Before Chief Justice Pickering and Justices Hardesty and Saitta. Opinion by Justice Hardesty.
In this appeal, the Court considered whether an attorney’s alleged negligence in representing a creditor in the non-adversarial parts of a bankruptcy proceeding constitutes litigation malpractice causing the Hewitt v. Allen, 118 Nev. 216, 43 P.3d 345 (2002) rule to toll the statute of limitations for a professional malpractice claim. Generally a claim for professional malpractice against a lawyer must be brought within two years of discovery of the cause of action. The litigation tolling rule set forth in Hewitt provides that the statutory limitation period for a claim of legal malpractice involving the representation of a client during litigation does not commence until the underlying litigation is concluded. Thus, in the context of litigation malpractice, damages do not begin to accrue until the underlying legal action has been resolved, and the malpractice action does not accrue while an appeal from the adverse ruling is pending. Whether the Hewitt rule applied to bankruptcy proceedings was a question of first impression for Nevada. Relying on the reasoning in an Arizona case, Cannon v. Hirsch Law Office, P.C., 213 P.3d 320 (Ariz. Ct. App. 2009), the Court held that because no complaint was filed in the bankruptcy proceeding, by definition, the proceedings were non-adversarial, did not occur in the “course of litigation,” and did not cause the Hewitt litigation tolling rule to apply. Accordingly, the Court found that the district court was correct in granting the attorney’s motion to dismiss pursuant to the discovery rule articulated in NRS 11.207(1). In addition, the Court held that because it was undisputed by the parties that the attorney only represented appellants in the bankruptcy action from July 2002 to February 2003, any professional malpractice claim would therefore not be tolled by the litigation malpractice tolling rule after February 2003, even if the Court were to conclude that the bankruptcy proceeding in this case qualified as litigation. Affirmed. (Amanda C. Yen, Associate in the Las Vegas office of McDonald Carano Wilson.)
In this appeal, the Court considered whether an attorney’s alleged negligence in representing a creditor in the non-adversarial parts of a bankruptcy proceeding constitutes litigation malpractice causing the Hewitt v. Allen, 118 Nev. 216, 43 P.3d 345 (2002) rule to toll the statute of limitations for a professional malpractice claim. Generally a claim for professional malpractice against a lawyer must be brought within two years of discovery of the cause of action. The litigation tolling rule set forth in Hewitt provides that the statutory limitation period for a claim of legal malpractice involving the representation of a client during litigation does not commence until the underlying litigation is concluded. Thus, in the context of litigation malpractice, damages do not begin to accrue until the underlying legal action has been resolved, and the malpractice action does not accrue while an appeal from the adverse ruling is pending. Whether the Hewitt rule applied to bankruptcy proceedings was a question of first impression for Nevada. Relying on the reasoning in an Arizona case, Cannon v. Hirsch Law Office, P.C., 213 P.3d 320 (Ariz. Ct. App. 2009), the Court held that because no complaint was filed in the bankruptcy proceeding, by definition, the proceedings were non-adversarial, did not occur in the “course of litigation,” and did not cause the Hewitt litigation tolling rule to apply. Accordingly, the Court found that the district court was correct in granting the attorney’s motion to dismiss pursuant to the discovery rule articulated in NRS 11.207(1). In addition, the Court held that because it was undisputed by the parties that the attorney only represented appellants in the bankruptcy action from July 2002 to February 2003, any professional malpractice claim would therefore not be tolled by the litigation malpractice tolling rule after February 2003, even if the Court were to conclude that the bankruptcy proceeding in this case qualified as litigation. Affirmed. (Amanda C. Yen, Associate in the Las Vegas office of McDonald Carano Wilson.)
Thursday, July 11, 2013
Leventhal v. Black & LoBello, 129 Nev. Adv. Op. 50 (July 11, 2013)
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).
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).
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