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.)
Showing posts with label Appellate Procedure. Show all posts
Showing posts with label Appellate Procedure. Show all posts
Thursday, August 29, 2013
Thursday, May 30, 2013
Brown v. MHC Stagecoach, 129 Nev. Adv. Op. 37 (May 30, 2013)
Before the Court En Banc. Opinion by Justice Gibbons.
In this appeal, the Court held that it lacked jurisdiction to consider an appeal of an order that statistically closed a case. Appellant was a former employee of Respondent who alleged that discriminatory treatment resulted in her constructive termination. The parties negotiated a settlement agreement and the district court entered an order instantiating the terms of the settlement, but not entering a final judgment. Appellant subsequently refused to accept the settlement funds and contested the validity of the settlement. Thereafter, the district court entered a form order statistically closing the case on the basis that there had been a stipulated judgment and Appellant appealed this order. The Court recognized that it had appellate jurisdiction to review decisions of the district courts but only where the appeals are authorized by statute or court rule. The form order in question was not a final, appealable judgment under NRAP 3A(b)(1) because it did not resolve the underlying case or claims. There was also no other statute or court rule providing for the appeal of this type of an order. The Court explicitly noted that Appellant would be able to challenge a future judgment or order that finally adjudicated the rights of Appellant. Dismissed. (Adam Hosmer-Henner, Associate in the Reno office of McDonald Carano Wilson LLP.)
In this appeal, the Court held that it lacked jurisdiction to consider an appeal of an order that statistically closed a case. Appellant was a former employee of Respondent who alleged that discriminatory treatment resulted in her constructive termination. The parties negotiated a settlement agreement and the district court entered an order instantiating the terms of the settlement, but not entering a final judgment. Appellant subsequently refused to accept the settlement funds and contested the validity of the settlement. Thereafter, the district court entered a form order statistically closing the case on the basis that there had been a stipulated judgment and Appellant appealed this order. The Court recognized that it had appellate jurisdiction to review decisions of the district courts but only where the appeals are authorized by statute or court rule. The form order in question was not a final, appealable judgment under NRAP 3A(b)(1) because it did not resolve the underlying case or claims. There was also no other statute or court rule providing for the appeal of this type of an order. The Court explicitly noted that Appellant would be able to challenge a future judgment or order that finally adjudicated the rights of Appellant. Dismissed. (Adam Hosmer-Henner, Associate in the Reno office of McDonald Carano Wilson LLP.)
Thursday, May 2, 2013
Jacinto v. PennyMac Corp., 129 Nev. Adv. Op. 32 (May 2, 2013)
Before Justices Gibbons, Douglas, and Saitta. Opinion by Justice Douglas.
In this appeal from a petition for judicial review of a foreclosure mediation, the Court considered whether a homeowner who obtained some relief but not all the requested relief is an aggrieved party with standing to appeal. Under a NRAP 3A, to have standing to appeal, a party must be “aggrieved”, meaning adversely and substantially affected by a challenged judgment. In this opinion, the Court makes clear that a party who receives an order granting some requested relief but denying other relief may be considered aggrieved under NRAP 3A. Addressing the substance of the appeal, the Court held that the district court did not abuse its discretion when it granted only monetary sanctions for the lender’s failure to comply with the foreclosure mediation rules. Affirmed. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
In this appeal from a petition for judicial review of a foreclosure mediation, the Court considered whether a homeowner who obtained some relief but not all the requested relief is an aggrieved party with standing to appeal. Under a NRAP 3A, to have standing to appeal, a party must be “aggrieved”, meaning adversely and substantially affected by a challenged judgment. In this opinion, the Court makes clear that a party who receives an order granting some requested relief but denying other relief may be considered aggrieved under NRAP 3A. Addressing the substance of the appeal, the Court held that the district court did not abuse its discretion when it granted only monetary sanctions for the lender’s failure to comply with the foreclosure mediation rules. Affirmed. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
Thursday, February 28, 2013
Peck v. Crouser, 129 Nev. Adv. Op. 12 (Feb. 28, 2013)
Before the Court en banc. Opinion by Justice Gibbons.
In this appeal, the Nevada Supreme Court considered whether the court has jurisdiction over an appeal from a post-judgment order in the district court that designated a party as a “vexatious litigant.” To resolve this question, the court first considered whether this type of post-judgment order is appealable under NRAP 3A(b). The court concluded that the only possible vehicles for this appeal were special orders after final judgment under NRAP 3(b)(8) and injunctions under NRAP 3A(b)(3). However, neither of these provisions applies to orders designating a party as a vexatious litigant. Special orders are limited to decisions that affect the rights of a party to the action and arise out of the judgment, and a declaration that a party is a vexatious litigant arises out of the United States and Nevada Constitutions, case law, statutes, and court rules. Injunctions are governed by NRCP 65, which does not apply to vexatious litigation orders. Accordingly, these orders are not directly appealable and the court dismissed the appeal for lack of jurisdiction. However, the court concluded that a writ is the appropriate way to challenge a vexatious litigant order because such orders relate to whether the district court abused its discretion in issuing the order. Dismissed. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson.)
In this appeal, the Nevada Supreme Court considered whether the court has jurisdiction over an appeal from a post-judgment order in the district court that designated a party as a “vexatious litigant.” To resolve this question, the court first considered whether this type of post-judgment order is appealable under NRAP 3A(b). The court concluded that the only possible vehicles for this appeal were special orders after final judgment under NRAP 3(b)(8) and injunctions under NRAP 3A(b)(3). However, neither of these provisions applies to orders designating a party as a vexatious litigant. Special orders are limited to decisions that affect the rights of a party to the action and arise out of the judgment, and a declaration that a party is a vexatious litigant arises out of the United States and Nevada Constitutions, case law, statutes, and court rules. Injunctions are governed by NRCP 65, which does not apply to vexatious litigation orders. Accordingly, these orders are not directly appealable and the court dismissed the appeal for lack of jurisdiction. However, the court concluded that a writ is the appropriate way to challenge a vexatious litigant order because such orders relate to whether the district court abused its discretion in issuing the order. Dismissed. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson.)
Thursday, January 31, 2013
Garcia v. Prudential Ins. Co. of America, 129 Nev. Adv. Op. 3 (Jan. 31, 2013)
Before the Court en banc. Opinion by Justice Douglas.
In this appeal, the Court addressed the preclusive effect of a federal court’s dismissal without prejudice for failure to state a claim when the federal court is sitting in diversity. The Court recognized that its decision in Bower v. Harrah’s Laughlin, 125 Nev. 470, 215 P.3d 718 (2009), needed to be clarified to prevent a conflict with the United States Supreme Court’s decision in Semtek International Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001). The Court clarified that the rule in Bower applies only to decisions of federal courts exercising jurisdiction over federal questions. In cases of diversity jurisdiction, under the Semtek rule, “[d]ecisions rendered when the federal court is sitting in diversity . . . are to be accorded the same claim-preclusive effect as a state court decision in the state in which the federal court sits, unless the state law is ‘incompatible with federal interests.’” 129 Nev. Adv. Op. at 7 (quoting Semtek, 531 U.S. at 507, 508). Because Appellant’s first lawsuit was dismissed in federal court sitting in New Jersey, the Court determined that New Jersey issue-preclusion law should be applied to determine whether her claims in Nevada state court should be precluded. Although the Court determined that the district court erred by applying federal law, it agreed with the result and affirmed the decision pursuant Semtek, its clarification to Bower, and New Jersey law regarding issue preclusion. As an issue of interest to practitioners, the Court also agreed to address the issue of preclusion despite appellant’s failure to raise the issue below to clarify the legal issue raised. Affirmed. (David Stoft, Associate in the Las Vegas office of McDonald Carano Wilson.)
In this appeal, the Court addressed the preclusive effect of a federal court’s dismissal without prejudice for failure to state a claim when the federal court is sitting in diversity. The Court recognized that its decision in Bower v. Harrah’s Laughlin, 125 Nev. 470, 215 P.3d 718 (2009), needed to be clarified to prevent a conflict with the United States Supreme Court’s decision in Semtek International Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001). The Court clarified that the rule in Bower applies only to decisions of federal courts exercising jurisdiction over federal questions. In cases of diversity jurisdiction, under the Semtek rule, “[d]ecisions rendered when the federal court is sitting in diversity . . . are to be accorded the same claim-preclusive effect as a state court decision in the state in which the federal court sits, unless the state law is ‘incompatible with federal interests.’” 129 Nev. Adv. Op. at 7 (quoting Semtek, 531 U.S. at 507, 508). Because Appellant’s first lawsuit was dismissed in federal court sitting in New Jersey, the Court determined that New Jersey issue-preclusion law should be applied to determine whether her claims in Nevada state court should be precluded. Although the Court determined that the district court erred by applying federal law, it agreed with the result and affirmed the decision pursuant Semtek, its clarification to Bower, and New Jersey law regarding issue preclusion. As an issue of interest to practitioners, the Court also agreed to address the issue of preclusion despite appellant’s failure to raise the issue below to clarify the legal issue raised. Affirmed. (David Stoft, Associate in the Las Vegas office of McDonald Carano Wilson.)
Education Init. v. Comm. to Protect Nev. Jobs, 129 Nev. Adv. Op. 5 (Jan. 31, 2013)
Before the Court en banc. Opinion by Justice Hardesty.
In this appeal, the Court considered the proper standard of review to be applied when reviewing the adequacy of a ballot initiative’s description of effect. NRS 295.009, the statute at issue in this appeal, sets forth two requirements that the proponent of a ballot initiative must satisfy: (1) the proposed law must embrace only “one subject,” and (2) when gathering petition signatures, the proponent’s petitions must include, “in not more than 200 words, a description of the effect of the initiative or referendum if the initiative or referendum is approved by the voters.” In resolving whether The Education Initiative PAC’s description of effect for its proposed ballot initiative violated NRS 295.009, the Court examined the function of a description of effect in the initiative process and how a court should analyze a description of effect in reviewing a challenge to the sufficiency of the description. The Court also considered whether the initiative violates the single-subject rule. First, the Court found that because a description of effect serves a limited purpose to facilitate the initiative process, a description of effect must be straightforward, succinct, and a nonargumentative summary of what the initiative is designed to achieve and how it intends to reach those goals. Second, the Court found that the description of effect cannot constitutionally be required to delineate every effect that an initiative will have due to its limited purpose and its 200-word limitation. Thus, the Court held that in reviewing an initiative’s description of effect, a district court must take a “holistic approach” to determine whether the description is a straightforward, succinct, and nonargumentative summary of an initiative’s purpose and how that purpose is achieved, and must also use that approach to determine whether the information contained in the description is correct and does not misrepresent what the initiative will accomplish and how it intends to achieve those goals. Finally, the Court confirmed that a ballot initiative satisfies the single-subject requirement when the initiative’s proposed parts are “functionally related and germane to each other and the initiative’s purpose of subject.” Affirmed in part and reversed in part. (Amanda C. Yen, Associate in the Las Vegas office of McDonald Carano Wilson.)
In this appeal, the Court considered the proper standard of review to be applied when reviewing the adequacy of a ballot initiative’s description of effect. NRS 295.009, the statute at issue in this appeal, sets forth two requirements that the proponent of a ballot initiative must satisfy: (1) the proposed law must embrace only “one subject,” and (2) when gathering petition signatures, the proponent’s petitions must include, “in not more than 200 words, a description of the effect of the initiative or referendum if the initiative or referendum is approved by the voters.” In resolving whether The Education Initiative PAC’s description of effect for its proposed ballot initiative violated NRS 295.009, the Court examined the function of a description of effect in the initiative process and how a court should analyze a description of effect in reviewing a challenge to the sufficiency of the description. The Court also considered whether the initiative violates the single-subject rule. First, the Court found that because a description of effect serves a limited purpose to facilitate the initiative process, a description of effect must be straightforward, succinct, and a nonargumentative summary of what the initiative is designed to achieve and how it intends to reach those goals. Second, the Court found that the description of effect cannot constitutionally be required to delineate every effect that an initiative will have due to its limited purpose and its 200-word limitation. Thus, the Court held that in reviewing an initiative’s description of effect, a district court must take a “holistic approach” to determine whether the description is a straightforward, succinct, and nonargumentative summary of an initiative’s purpose and how that purpose is achieved, and must also use that approach to determine whether the information contained in the description is correct and does not misrepresent what the initiative will accomplish and how it intends to achieve those goals. Finally, the Court confirmed that a ballot initiative satisfies the single-subject requirement when the initiative’s proposed parts are “functionally related and germane to each other and the initiative’s purpose of subject.” Affirmed in part and reversed in part. (Amanda C. Yen, Associate in the Las Vegas office of McDonald Carano Wilson.)
Thursday, December 27, 2012
Howard v. State, 128 Nev. Adv. Op. 67 (Dec. 27, 2012)
Before Justices Saitta, Pickering and Hardesty. Opinion by Justice Hardesty.
This opinion arose from a motion to seal records in a criminal appeal. In it, the Court addressed the sealing of records in criminal cases by thoroughly examining the rules for sealing records in civil cases. First, the Court held that documents filed in the Nevada Supreme Court are presumptively open to the public. However, the Court retains the inherent supervisory authority to limit this access if a party seeking to seal such documents overcomes this presumption. The presumption may be overcome by demonstrating that the public’s right to access is outweighed by a significant competing interest. Second, the Court concluded that, procedurally, a party seeking to file documents under seal must first file a motion which identifies the information sought to be sealed, the reasons why such action is necessary, the specific requested duration of the sealing order and an explanation of why less restrictive means will not adequately protect the material. Discussing SRCR 3, which governs the procedures for sealing records in civil cases before the Nevada Supreme Court, the Court noted that the party requesting that records be sealed must file and serve a motion establishing appropriate grounds for sealing such records. Before a final decision is made on the motion to file under seal, the information will remain confidential for a reasonable period of time. The Court also clarified that the sealing of an entire court file is prohibited and that any order to seal records should use the least restrictive means and duration. Previously filed records ordered unsealed. (Amanda M. Perach, Associate in the Las Vegas office of McDonald Carano Wilson.)
This opinion arose from a motion to seal records in a criminal appeal. In it, the Court addressed the sealing of records in criminal cases by thoroughly examining the rules for sealing records in civil cases. First, the Court held that documents filed in the Nevada Supreme Court are presumptively open to the public. However, the Court retains the inherent supervisory authority to limit this access if a party seeking to seal such documents overcomes this presumption. The presumption may be overcome by demonstrating that the public’s right to access is outweighed by a significant competing interest. Second, the Court concluded that, procedurally, a party seeking to file documents under seal must first file a motion which identifies the information sought to be sealed, the reasons why such action is necessary, the specific requested duration of the sealing order and an explanation of why less restrictive means will not adequately protect the material. Discussing SRCR 3, which governs the procedures for sealing records in civil cases before the Nevada Supreme Court, the Court noted that the party requesting that records be sealed must file and serve a motion establishing appropriate grounds for sealing such records. Before a final decision is made on the motion to file under seal, the information will remain confidential for a reasonable period of time. The Court also clarified that the sealing of an entire court file is prohibited and that any order to seal records should use the least restrictive means and duration. Previously filed records ordered unsealed. (Amanda M. Perach, Associate in the Las Vegas office of McDonald Carano Wilson.)
Dynamic Transit v. Trans Pac. Ventures, 128 Nev. Adv. Op. 69 (Dec. 27, 2012)
Before Justices Douglas, Gibbons, and Parraguirre. Opinion by Justice Parraguirre.
In this appeal from an amended judgment following a bench trial, the Court examined whether the Carmack Amendment preempted a shipper’s state-law claim for conversion. Respondents/Cross-Appellants purchased a luxury sports car and contracted with Nex-Day Auto Transport to facilitate its delivery to Washington State. Nex-Day then advertised the job on an industry website, and received an offer from Appellants/Cross-Respondents to transport the car. Nex-Day faxed a work order to Appellants, and required a signed copy to complete the agreement, which Nex-Day never received. Nex-Day faxed Appellants a cancellation, and proceeded to solicit other carriers. The following day, a driver employed by Appellants arrived at the car dealership and loaded the vehicle onto a carrier, despite the protests of a dealership representative. Appellants then transported the car to Washington State, but instead of completing delivery, they held the car as ransom, demanding that Nex-Day pay for past-due invoices for prior work Appellants had performed for Nex-Day. Nex-Day failed to pay these past-due amounts, and the car was ultimately transported to a storage facility in Missouri. Respondents brought an action against Appellants, claiming, among other things, conversion and fraud. Nearly a year and a half after filing its answer, Appellants filed a motion to dismiss under NRCP 12(b)(5) on the basis that Respondents’ claims were preempted by the federal Carmack Amendment, which limits liability for interstate cargo carriers solely to the “actual loss or injury” to goods that occurs during interstate transit. The district court denied the motion, on the basis that the Carmack Amendment did not apply in instances of conversion and fraud. The Court examined Ninth Circuit precedent in affirming the district court’s judgment, holding that in instances of “true conversion,” such as occurred in this case, the Carmack Amendment does not preempt state law conversion claims. It noted, however, that other federal case law suggested that fraud claims are typically preempted. The Court quickly rejected Appellants’ claim that the district court’s judgment was not supported by substantial evidence, and upheld the district court’s award of compensatory and punitive damages. It noted that three other arguments made by Appellants had not been preserved for appeal because Appellants did not raise these arguments at trial, and failed to provide relevant authority for these arguments on appeal. Affirmed in part and dismissed in part. (Jeff S. Riesenmy, Associate in the Las Vegas office of McDonald Carano Wilson.)
In this appeal from an amended judgment following a bench trial, the Court examined whether the Carmack Amendment preempted a shipper’s state-law claim for conversion. Respondents/Cross-Appellants purchased a luxury sports car and contracted with Nex-Day Auto Transport to facilitate its delivery to Washington State. Nex-Day then advertised the job on an industry website, and received an offer from Appellants/Cross-Respondents to transport the car. Nex-Day faxed a work order to Appellants, and required a signed copy to complete the agreement, which Nex-Day never received. Nex-Day faxed Appellants a cancellation, and proceeded to solicit other carriers. The following day, a driver employed by Appellants arrived at the car dealership and loaded the vehicle onto a carrier, despite the protests of a dealership representative. Appellants then transported the car to Washington State, but instead of completing delivery, they held the car as ransom, demanding that Nex-Day pay for past-due invoices for prior work Appellants had performed for Nex-Day. Nex-Day failed to pay these past-due amounts, and the car was ultimately transported to a storage facility in Missouri. Respondents brought an action against Appellants, claiming, among other things, conversion and fraud. Nearly a year and a half after filing its answer, Appellants filed a motion to dismiss under NRCP 12(b)(5) on the basis that Respondents’ claims were preempted by the federal Carmack Amendment, which limits liability for interstate cargo carriers solely to the “actual loss or injury” to goods that occurs during interstate transit. The district court denied the motion, on the basis that the Carmack Amendment did not apply in instances of conversion and fraud. The Court examined Ninth Circuit precedent in affirming the district court’s judgment, holding that in instances of “true conversion,” such as occurred in this case, the Carmack Amendment does not preempt state law conversion claims. It noted, however, that other federal case law suggested that fraud claims are typically preempted. The Court quickly rejected Appellants’ claim that the district court’s judgment was not supported by substantial evidence, and upheld the district court’s award of compensatory and punitive damages. It noted that three other arguments made by Appellants had not been preserved for appeal because Appellants did not raise these arguments at trial, and failed to provide relevant authority for these arguments on appeal. Affirmed in part and dismissed in part. (Jeff S. Riesenmy, Associate in the Las Vegas office of McDonald Carano Wilson.)
Beazer Homes Holding Corp. v. Dist. Ct., 128 Nev. Adv. Op. 66 (December, 27, 2012)
Before the Court En Banc. Opinion by Justice Douglas.
In this writ petition, the Court clarified the rule announced in D.R. Horton v. District Court (First Light II), 125 Nev. 449, 215 P.3d 697 (2009), by which homeowners’ associations can sue on behalf of their members if they meet the Rule 23 class action requirements. Beazer Homes Holding Corp. (the Developer) challenged the district court’s decision to permit real-party-in-interest View of Black Mountain Homeowners’ Association, Inc. (the HOA) to maintain a construction defect class action lawsuit on behalf of its members. The district court determined that the case was factually distinguishable from First Light II (which involved interior, rather than exterior, defects), and the HOA was not required to meet the class action requirements of NRCP 23 because it was expressly permitted to litigate on behalf of its members pursuant to NRS 116.3102(1)(d). In its writ petition, the Developer argued that First Light II required the district court to analyze Rule 23 and, based on that analysis, the HOA could not proceed in a representative capacity. The Court first restated a portion of its holding in First Light II that, pursuant to NRS 116.3102(1), a homeowners’ association has standing to sue on behalf of its members, regardless of whether it meets the NRCP 23 class action requirements, and regardless of whether it is seeking to recover damages for common areas which it is responsible for maintaining. In addition, the Court reiterated that an association is required to satisfy the Rule 23 class action requirements in order to pursue individual construction defect claims of multiple owners. However, the Court clarified that, despite suggestions in First Light II to the contrary, a homeowners’ association’s failure to strictly satisfy those requirements does not automatically result in a failure of the representative action. Rather, district courts are required to conduct a Rule 23 analysis when a homeowners’ association requests certification of a class action, as such an analysis will assist the district court in determining how the action should proceed (i.e., as a class action, a joinder action, consolidated actions, or in some other fashion), and how notice, discovery, evidentiary, and claim preclusion issues should be resolved. The Court held that the district court acted arbitrarily and capriciously because it failed to conduct such an analysis. Accordingly, the Court granted the Developer’s writ petition in part, and directed the clerk to issue a writ of mandamus instructing the district court to conduct a Rule 23 analysis. (Patrick J. Murch, Associate in the Las Vegas office of McDonald Carano Wilson LLP).
In this writ petition, the Court clarified the rule announced in D.R. Horton v. District Court (First Light II), 125 Nev. 449, 215 P.3d 697 (2009), by which homeowners’ associations can sue on behalf of their members if they meet the Rule 23 class action requirements. Beazer Homes Holding Corp. (the Developer) challenged the district court’s decision to permit real-party-in-interest View of Black Mountain Homeowners’ Association, Inc. (the HOA) to maintain a construction defect class action lawsuit on behalf of its members. The district court determined that the case was factually distinguishable from First Light II (which involved interior, rather than exterior, defects), and the HOA was not required to meet the class action requirements of NRCP 23 because it was expressly permitted to litigate on behalf of its members pursuant to NRS 116.3102(1)(d). In its writ petition, the Developer argued that First Light II required the district court to analyze Rule 23 and, based on that analysis, the HOA could not proceed in a representative capacity. The Court first restated a portion of its holding in First Light II that, pursuant to NRS 116.3102(1), a homeowners’ association has standing to sue on behalf of its members, regardless of whether it meets the NRCP 23 class action requirements, and regardless of whether it is seeking to recover damages for common areas which it is responsible for maintaining. In addition, the Court reiterated that an association is required to satisfy the Rule 23 class action requirements in order to pursue individual construction defect claims of multiple owners. However, the Court clarified that, despite suggestions in First Light II to the contrary, a homeowners’ association’s failure to strictly satisfy those requirements does not automatically result in a failure of the representative action. Rather, district courts are required to conduct a Rule 23 analysis when a homeowners’ association requests certification of a class action, as such an analysis will assist the district court in determining how the action should proceed (i.e., as a class action, a joinder action, consolidated actions, or in some other fashion), and how notice, discovery, evidentiary, and claim preclusion issues should be resolved. The Court held that the district court acted arbitrarily and capriciously because it failed to conduct such an analysis. Accordingly, the Court granted the Developer’s writ petition in part, and directed the clerk to issue a writ of mandamus instructing the district court to conduct a Rule 23 analysis. (Patrick J. Murch, Associate in the Las Vegas office of McDonald Carano Wilson LLP).
Thursday, September 27, 2012
Gold Ridge Partners v. Sierra Pac. Power, 128 Nev. Adv. Op. 47 (Sept. 27, 2012)
Before the Court En Banc (Justice Pickering recused). Opinion by Justice Parraguirre. Concurrence by Justice Gibbons, joined by Justice Cherry.
In this published order denying a motion for remand, the Court considered whether a public agency may abandon an eminent domain action, pursuant to its statutory authority, after having paid just compensation and after entry of a final order of condemnation, but before the issues pending on appeal are resolved. The Court reviewed NRS 37.180(1) to determine the circumstances under which a plaintiff may abandon a condemnation. Based on the plain language of the statute, the Court concluded that a plaintiff may abandon the condemnation proceeding so long as no more than thirty days had passed since entry of final judgment, which occurs after an appeal in a condemnation action. Thus, even if the plaintiff takes title to the property and pays the amount of the judgment for just compensation, the plaintiff may abandon the condemnation proceeding while other related issues, such as property valuation, are pending on appeal. Concluding that the plaintiff was entitled to abandon the condemnation proceeding, the Court considered whether a district court had jurisdiction to dismiss the action upon the plaintiff’s filing of a notice of abandonment and motion to vacate the judgment (which is treated as a motion to dismiss under NRS 37.180). The Court acknowledged that a notice of appeal generally divests the district court of jurisdiction for non-collateral matters; however, the Court noted that the language contained in NRS 37.180 provides that abandonment of a condemnation proceeding may occur “at any time” between the filing of the complaint and thirty days after entry of a final judgment. The statute also requires the district court to dismiss the proceeding upon the motion of any party after a notice of abandonment is filed. Accordingly, the Court concluded that the district court retains limited jurisdiction during the pendency of an appeal to consider a motion to dismiss/motion to vacate judgment filed pursuant to a plaintiff’s notice of abandonment in a condemnation action. As such, the Court denied the motion for remand as moot. Concurring in the order denying the motion to remand, Justices Gibbons and Cherry emphasized the facts that indicated the plaintiff may be equitably stopped from abandoning the proceedings under these circumstances. Motion denied as moot. (Amanda M. Perach, Associate in the Las Vegas office of McDonald Carano Wilson).
In this published order denying a motion for remand, the Court considered whether a public agency may abandon an eminent domain action, pursuant to its statutory authority, after having paid just compensation and after entry of a final order of condemnation, but before the issues pending on appeal are resolved. The Court reviewed NRS 37.180(1) to determine the circumstances under which a plaintiff may abandon a condemnation. Based on the plain language of the statute, the Court concluded that a plaintiff may abandon the condemnation proceeding so long as no more than thirty days had passed since entry of final judgment, which occurs after an appeal in a condemnation action. Thus, even if the plaintiff takes title to the property and pays the amount of the judgment for just compensation, the plaintiff may abandon the condemnation proceeding while other related issues, such as property valuation, are pending on appeal. Concluding that the plaintiff was entitled to abandon the condemnation proceeding, the Court considered whether a district court had jurisdiction to dismiss the action upon the plaintiff’s filing of a notice of abandonment and motion to vacate the judgment (which is treated as a motion to dismiss under NRS 37.180). The Court acknowledged that a notice of appeal generally divests the district court of jurisdiction for non-collateral matters; however, the Court noted that the language contained in NRS 37.180 provides that abandonment of a condemnation proceeding may occur “at any time” between the filing of the complaint and thirty days after entry of a final judgment. The statute also requires the district court to dismiss the proceeding upon the motion of any party after a notice of abandonment is filed. Accordingly, the Court concluded that the district court retains limited jurisdiction during the pendency of an appeal to consider a motion to dismiss/motion to vacate judgment filed pursuant to a plaintiff’s notice of abandonment in a condemnation action. As such, the Court denied the motion for remand as moot. Concurring in the order denying the motion to remand, Justices Gibbons and Cherry emphasized the facts that indicated the plaintiff may be equitably stopped from abandoning the proceedings under these circumstances. Motion denied as moot. (Amanda M. Perach, Associate in the Las Vegas office of McDonald Carano Wilson).
Thursday, June 28, 2012
Choy v. Ameristar Casinos, Inc., 128 Nev. Adv. Op. 29 (June 28, 2012)
Before the Court En Banc. Opinion by Justice Douglas.
Appellant Paul Choy sought en banc reconsideration of the Court’s earlier opinion in Choy v. Ameristar Casinos, Inc., 127 Nev. Adv. Op. 78 (Nov. 23, 2011), in which the Court held that Choy had failed to substantially comply with NRCP 56(f)’s requirement that a party opposing a motion for summary judgment and seeking a denial or continuance of the motion in order to conduct further discovery must provide an affidavit giving the reasons why the party cannot present “facts essential to justify the party’s opposition.” In denying the petition for reconsideration, the Court confirmed that parties must substantially comply with NRCP 56(f)’s affidavit requirement and specifically disapproved of the holding in Halimi v. Blacketor, 105 Nev. 105, 106, 770 P.2d 531, 531 (1989) to the extent it is inconsistent with the text of NRCP 56(f) and the Court’s holding in Choy. Petition for Reconsideration denied. (Jessica Woelfel, Associate in the Reno office of McDonald Carano Wilson, LLP.)
Appellant Paul Choy sought en banc reconsideration of the Court’s earlier opinion in Choy v. Ameristar Casinos, Inc., 127 Nev. Adv. Op. 78 (Nov. 23, 2011), in which the Court held that Choy had failed to substantially comply with NRCP 56(f)’s requirement that a party opposing a motion for summary judgment and seeking a denial or continuance of the motion in order to conduct further discovery must provide an affidavit giving the reasons why the party cannot present “facts essential to justify the party’s opposition.” In denying the petition for reconsideration, the Court confirmed that parties must substantially comply with NRCP 56(f)’s affidavit requirement and specifically disapproved of the holding in Halimi v. Blacketor, 105 Nev. 105, 106, 770 P.2d 531, 531 (1989) to the extent it is inconsistent with the text of NRCP 56(f) and the Court’s holding in Choy. Petition for Reconsideration denied. (Jessica Woelfel, Associate in the Reno office of McDonald Carano Wilson, LLP.)
Thursday, June 14, 2012
Ryan’s Express v. Amador Stage Lines, 128 Nev. Adv. Op. 27 (June 14, 2012)
Before the Court en banc. Opinion by Justice Douglas.
The underlying appeal in this case involves a district court’s order dismissing all claims of Ryan’s Express Transportation Services, Inc. (“Ryan”) against Amador Stage Lines, Inc. (“Amador”). Upon appeal, the case was assigned to the Court’s settlement program. The settlement conference was unsuccessful. Subsequently, counsel for Amador (Ellen Jean Winograd) joined the law firm of Woodburn and Wedge. Woodburn and Wedge is the same law firm that the settlement conference judge (Nicholas Frey) works for. As a result, Ryan’s counsel filed a Motion to Disqualify Amador’s counsel. In ruling on the Motion to Disqualify, the issue before the Nevada Supreme Court is whether screening is appropriate with regard to a settlement judge acting under the Court’s settlement conference program or how to determine the sufficiency of any screening measures utilized. The parties agreed that Frey is disqualified because, as the settlement judge, he “participated personally and substantially” as a third-party neutral and informed consent in writing was not obtained as required by Nevada’s Rules of Professional Conduct (“RPC”) 1.12(a). As a result, the Woodburn and Wedge law firm is disqualified unless it can demonstrate that Frey was timely and adequately screened off pursuant to RPC 1.12(c). The Court held that screening of lawyers, under the applicable rules of professional conduct, may be used to rebut the presumption of shared confidences. The Court also adopted an approach requiring Nevada’s courts to conduct an evidentiary hearing to determine the adequacy and timeliness of the screening measures on a case-by-case basis. The burden of proof is upon the party seeking to cure an imputed disqualification with screening to demonstrate that the use of screening is appropriate for the situation and that the disqualified attorney is timely and properly screened. The factors considered are: (1) instructions given to ban the exchange of information between the disqualified attorney and other members of the firm; (2) restricted access to files and other information about the case; (3) the size of the law firm and its structural divisions; (4) the likelihood of contact between the quarantined lawyer and other members of the firm; and (5) the time of screening. Because an evidentiary hearing has not been conducted in this matter, the matter was remanded to the district court. The Court further indicated that while no rule or statute specifically authorizes it to remand a matter for additional fact-finding, that such power for remand comes from the inherent power of the courts. Remanded for additional fact-finding. (Lisa M. Wiltshire, Associate in the Reno office of McDonald Carano Wilson.)
The underlying appeal in this case involves a district court’s order dismissing all claims of Ryan’s Express Transportation Services, Inc. (“Ryan”) against Amador Stage Lines, Inc. (“Amador”). Upon appeal, the case was assigned to the Court’s settlement program. The settlement conference was unsuccessful. Subsequently, counsel for Amador (Ellen Jean Winograd) joined the law firm of Woodburn and Wedge. Woodburn and Wedge is the same law firm that the settlement conference judge (Nicholas Frey) works for. As a result, Ryan’s counsel filed a Motion to Disqualify Amador’s counsel. In ruling on the Motion to Disqualify, the issue before the Nevada Supreme Court is whether screening is appropriate with regard to a settlement judge acting under the Court’s settlement conference program or how to determine the sufficiency of any screening measures utilized. The parties agreed that Frey is disqualified because, as the settlement judge, he “participated personally and substantially” as a third-party neutral and informed consent in writing was not obtained as required by Nevada’s Rules of Professional Conduct (“RPC”) 1.12(a). As a result, the Woodburn and Wedge law firm is disqualified unless it can demonstrate that Frey was timely and adequately screened off pursuant to RPC 1.12(c). The Court held that screening of lawyers, under the applicable rules of professional conduct, may be used to rebut the presumption of shared confidences. The Court also adopted an approach requiring Nevada’s courts to conduct an evidentiary hearing to determine the adequacy and timeliness of the screening measures on a case-by-case basis. The burden of proof is upon the party seeking to cure an imputed disqualification with screening to demonstrate that the use of screening is appropriate for the situation and that the disqualified attorney is timely and properly screened. The factors considered are: (1) instructions given to ban the exchange of information between the disqualified attorney and other members of the firm; (2) restricted access to files and other information about the case; (3) the size of the law firm and its structural divisions; (4) the likelihood of contact between the quarantined lawyer and other members of the firm; and (5) the time of screening. Because an evidentiary hearing has not been conducted in this matter, the matter was remanded to the district court. The Court further indicated that while no rule or statute specifically authorizes it to remand a matter for additional fact-finding, that such power for remand comes from the inherent power of the courts. Remanded for additional fact-finding. (Lisa M. Wiltshire, Associate in the Reno office of McDonald Carano Wilson.)
FGA Inc., v. Giglio, 128 Nev. Adv. Op. 26 (June 14, 2012)
Before Justices Douglas, Hardesty and Parraguirre. Opinion by Justice Douglas.
In this appeal from a jury verdict in a tort action, the Court considered whether the “mode of operation” approach to premises liability, under which the plaintiff does not have to prove the defendant’s knowledge of a particular hazardous condition if the plaintiff can prove that the nature of the defendant’s business tends to create a substantial risk of the type of harm the plaintiff suffered, extends beyond the self-service context. In answering the question in the negative, the Court held that because the mode of operation approach is premised on the idea that business owners should be held responsible for the risks that their choice to have customers serve themselves creates, the mode of operation approach does not extend to “sit-down” restaurants. The Court found no reason to extend mode of operation liability to such sit-down restaurants absent a showing that their owners created an increased risk of a potentially hazardous condition by having their customers perform tasks that are traditionally carried out by employees. Additionally, the Court addressed issues regarding the general verdict rule and rulings on the admissibility of evidence of pre-existing conditions, alcohol consumption, and testimony to correct erroneous statements. Of particular importance, the Court held that the general verdict rule (which provides that if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party) does not apply when there are multiple factual theories supporting a single legal theory of recovery. As a result, the appellant in this case was able to obtain reversal of the judgment on the jury verdict based on errors that affected only the mode of operation basis for the finding of negligence, despite evidence in the record from which a jury could have concluded that an employee of the restaurant was directly responsible for the spilled substance. Reversed and remanded. (Anthony L. Carano, Associate in the Reno office of McDonald Carano Wilson LLP.)
In this appeal from a jury verdict in a tort action, the Court considered whether the “mode of operation” approach to premises liability, under which the plaintiff does not have to prove the defendant’s knowledge of a particular hazardous condition if the plaintiff can prove that the nature of the defendant’s business tends to create a substantial risk of the type of harm the plaintiff suffered, extends beyond the self-service context. In answering the question in the negative, the Court held that because the mode of operation approach is premised on the idea that business owners should be held responsible for the risks that their choice to have customers serve themselves creates, the mode of operation approach does not extend to “sit-down” restaurants. The Court found no reason to extend mode of operation liability to such sit-down restaurants absent a showing that their owners created an increased risk of a potentially hazardous condition by having their customers perform tasks that are traditionally carried out by employees. Additionally, the Court addressed issues regarding the general verdict rule and rulings on the admissibility of evidence of pre-existing conditions, alcohol consumption, and testimony to correct erroneous statements. Of particular importance, the Court held that the general verdict rule (which provides that if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party) does not apply when there are multiple factual theories supporting a single legal theory of recovery. As a result, the appellant in this case was able to obtain reversal of the judgment on the jury verdict based on errors that affected only the mode of operation basis for the finding of negligence, despite evidence in the record from which a jury could have concluded that an employee of the restaurant was directly responsible for the spilled substance. Reversed and remanded. (Anthony L. Carano, Associate in the Reno office of McDonald Carano Wilson LLP.)
Thursday, April 5, 2012
In re Parental Rights as to C.C.A., 128 Nev. Adv. Op. 15 (April 5, 2012)
Before Justices Douglas, Hardesty and Parraguirre. Opinion by Justice Douglas.
In this appeal from a judgment terminating parental rights, the Court reversed and remanded the district court’s decision terminating parental rights because the district court failed to state any factual or legal basis for the termination. The order, submitted by the state, recited the statutory bases for terminating parental rights but did not recite any facts from the two-day bench trial or apply the law to those facts. Citing the high standard of proof for termination proceedings and NRCP 52(a), which requires district courts to separately state its findings of fact and conclusions of law in a judgment on a bench trial, the Court held that it could not review the decision because neither the written order nor the record of oral proceedings contained factual findings. Reversed and remanded. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson LLP).
In this appeal from a judgment terminating parental rights, the Court reversed and remanded the district court’s decision terminating parental rights because the district court failed to state any factual or legal basis for the termination. The order, submitted by the state, recited the statutory bases for terminating parental rights but did not recite any facts from the two-day bench trial or apply the law to those facts. Citing the high standard of proof for termination proceedings and NRCP 52(a), which requires district courts to separately state its findings of fact and conclusions of law in a judgment on a bench trial, the Court held that it could not review the decision because neither the written order nor the record of oral proceedings contained factual findings. Reversed and remanded. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson LLP).
Thursday, March 1, 2012
Carstarphen v. Milsner, 128 Nev. Adv. Op. 5 (March 1, 2012)
Before the Court en banc. Opinion by Justice Cherry. Justice Pickering dissenting.
In this appeal from an order dismissing a case for failure to bring it to trial within five years, the Court reaffirmed its factors for evaluating a motion for a preferential trial setting and resolved an inconsistency in the case law regarding the allowable time to bring an action to trial following a reversal and remand. A district court has discretion to grant a preferential trial date, but must consider (1) the time remaining in the five-year period when the motion is filed, and (2) the diligence of the moving party and his or her counsel in prosecuting the case. Resolving a conflict between a decision that gave three years to bring a case to trial after a remand and a case that gave “a reasonable time” to bring a case to trial, the Court concluded that the three-year rule was more clear and certain rule was the three-year rule. As such, when an erroneous judgment or dismissal is reversed on appeal, a plaintiff has three years from the date of the remittitur to bring the action to trial. In dissent, Justice Pickering asserted that because the appellant had argued for the decision of the district court that lead to the error, the doctrine of invited error barred his arguments on appeal. Justice Pickering would have affirmed the district court’s dismissal. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
In this appeal from an order dismissing a case for failure to bring it to trial within five years, the Court reaffirmed its factors for evaluating a motion for a preferential trial setting and resolved an inconsistency in the case law regarding the allowable time to bring an action to trial following a reversal and remand. A district court has discretion to grant a preferential trial date, but must consider (1) the time remaining in the five-year period when the motion is filed, and (2) the diligence of the moving party and his or her counsel in prosecuting the case. Resolving a conflict between a decision that gave three years to bring a case to trial after a remand and a case that gave “a reasonable time” to bring a case to trial, the Court concluded that the three-year rule was more clear and certain rule was the three-year rule. As such, when an erroneous judgment or dismissal is reversed on appeal, a plaintiff has three years from the date of the remittitur to bring the action to trial. In dissent, Justice Pickering asserted that because the appellant had argued for the decision of the district court that lead to the error, the doctrine of invited error barred his arguments on appeal. Justice Pickering would have affirmed the district court’s dismissal. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
Thursday, December 29, 2011
In re Fontainebleau Las Vegas Holdings, 127 Nev. Adv. Op. 85 (December 29, 2011)
Before the Court en banc (Justice Pickering recused). Opinion by Justice Hardesty.
In this decision, the Nevada Supreme Court addressed whether a party can supplement the factual record when a question is certified to the Nevada Supreme Court by a federal court. In the appeal, respondents filed a supplemental appendix to refute the facts the certifying court provided to the Court. The Court concluded that its role under a certification pursuant to NRAP 5, as the answering court, is simply to resolve the questions of law posed to it by the certifying court. In satisfying its obligation, the Court adopted the majority view that the answering court must accept the facts as provided by the certifying court and limit its analysis to applying the law to those facts. Therefore, while the Court may consider an appendix to get a better understanding of the underlying case, it will not examine supplemental materials for the purpose of contradicting the facts from the certifying court. Accordingly, the Court granted appellant’s motion to strike respondents’ supplemental appendix. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson).
In this decision, the Nevada Supreme Court addressed whether a party can supplement the factual record when a question is certified to the Nevada Supreme Court by a federal court. In the appeal, respondents filed a supplemental appendix to refute the facts the certifying court provided to the Court. The Court concluded that its role under a certification pursuant to NRAP 5, as the answering court, is simply to resolve the questions of law posed to it by the certifying court. In satisfying its obligation, the Court adopted the majority view that the answering court must accept the facts as provided by the certifying court and limit its analysis to applying the law to those facts. Therefore, while the Court may consider an appendix to get a better understanding of the underlying case, it will not examine supplemental materials for the purpose of contradicting the facts from the certifying court. Accordingly, the Court granted appellant’s motion to strike respondents’ supplemental appendix. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson).
Thursday, December 15, 2011
Sicor, Inc. v. Sacks, 127 Nev. Adv. Op. 81 (December 15, 2011)
Before Justices Saitta, Gibbons and Hardesty. Opinion by Justice Hardesty.
In this appeal from a district court order deferring a final ruling on a change in venue motion based on adverse pretrial publicity until after jury selection began, the Court considered whether such deferral constituted a final, appealable decision pursuant to NRAP 3A(b)(6). The Court concluded that the deferral did not constitute a final, appealable decision and that the district court’s decision to wait to finally rule on the motion to change venue until after voir dire and attempting to empanel a jury complied with the weight of authority. The defendant retains its right to an immediate appeal pursuant to NRAP 3A(b)(6) after a final decision on the motion to change venue if the defendant believes a change of venue is still proper. Accordingly, the Court dismissed the appeal as premature. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson).
In this appeal from a district court order deferring a final ruling on a change in venue motion based on adverse pretrial publicity until after jury selection began, the Court considered whether such deferral constituted a final, appealable decision pursuant to NRAP 3A(b)(6). The Court concluded that the deferral did not constitute a final, appealable decision and that the district court’s decision to wait to finally rule on the motion to change venue until after voir dire and attempting to empanel a jury complied with the weight of authority. The defendant retains its right to an immediate appeal pursuant to NRAP 3A(b)(6) after a final decision on the motion to change venue if the defendant believes a change of venue is still proper. Accordingly, the Court dismissed the appeal as premature. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson).
Thursday, September 29, 2011
Weddell v. Stewart, 127 Nev. Adv. Op. 58 (Sept. 29, 2011)
Before the Court en banc. Per curiam opinion.
The Court denied two motions for reconsideration in an opinion to emphasize the importance of complying with the Court’s procedural rules. In this case, appellant filed three separate notices of appeal, one from the merits of the underlying action, one from an order granting attorneys’ fees, and one from the order denying a motion to set aside the judgment. Appellants paid the filing fee for the notice of appeal filed on the merits of the case, but failed to pay a filing fee for the other two notices of appeal despite repeated warnings issued in Supreme Court orders. As such, the Court dismissed the two appeals in which fees had not been paid. Emphasizing that the Court has neither time nor money to police the payment of fees, the Court warns that it will take no action on any appeal until appropriate fees have been paid and, if the matter is docketed without payment of fees, the Court Clerk will issue a single notice demanding payment. After that notice, if the fees are not timely paid, the Court will dismiss the appeal. Motions denied. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson)
The Court denied two motions for reconsideration in an opinion to emphasize the importance of complying with the Court’s procedural rules. In this case, appellant filed three separate notices of appeal, one from the merits of the underlying action, one from an order granting attorneys’ fees, and one from the order denying a motion to set aside the judgment. Appellants paid the filing fee for the notice of appeal filed on the merits of the case, but failed to pay a filing fee for the other two notices of appeal despite repeated warnings issued in Supreme Court orders. As such, the Court dismissed the two appeals in which fees had not been paid. Emphasizing that the Court has neither time nor money to police the payment of fees, the Court warns that it will take no action on any appeal until appropriate fees have been paid and, if the matter is docketed without payment of fees, the Court Clerk will issue a single notice demanding payment. After that notice, if the fees are not timely paid, the Court will dismiss the appeal. Motions denied. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson)
Thursday, August 4, 2011
Yellow Cab of Reno, Inc. v. Second Judicial Dist. Ct., 127 Nev. Adv. Op. 52 (Aug. 4, 2011)
Before Douglas, Hardesty and Pickering. Opinion by Hardesty.
After originally denying a petition for writ of mandamus, the Court granted a petition for rehearing to consider the issue of whether a statutorily-recognized independent contractor relationship between a taxicab business and a cab driver (NRS 706.473) prevents liability for the taxicab business sued under a respondeat superior theory of liability. The district court, Hon. Janet Berry, concluded that the nature of the relationship between the taxicab company and the driver was a question of fact for the jury without addressing NRS 706.473, and summarily denied summary judgment. The Court reaffirmed the general rule that it will not consider a writ petition from the denial of summary judgment, stating that it would deny the writ on that basis, but addressed the merits of the petition because it presented an important issue of law. The Court held that while the determination as to whether an individual is an employee or an independent contractor for purposes of respondeat superior liability generally turns on the degree of control the employer exercises over the individual and that this is generally a question for the trier of fact, NRS 706.473 sets forth various administrative requirements for creating an independent contractor relationship in the taxicab company/driver context that have little to do with employer control. The Court concluded that the district court should have considered whether the requirements of the statute had been met, and whether an independent contractor relationship under NRS 706.473 would allow the taxicab company to avoid liability under a respondeat liability theory. Because the district court had failed to consider these issues and instead summarily denied summary judgment, the Court declined to consider the issue in the first instance through the present writ petition. The Court denied the petition but invited the district court to reconsider the propriety of summary judgment based on NRS 706.473. Writ denied. (Megan Starich, Associate in the Reno office of McDonald Carano Wilson)
After originally denying a petition for writ of mandamus, the Court granted a petition for rehearing to consider the issue of whether a statutorily-recognized independent contractor relationship between a taxicab business and a cab driver (NRS 706.473) prevents liability for the taxicab business sued under a respondeat superior theory of liability. The district court, Hon. Janet Berry, concluded that the nature of the relationship between the taxicab company and the driver was a question of fact for the jury without addressing NRS 706.473, and summarily denied summary judgment. The Court reaffirmed the general rule that it will not consider a writ petition from the denial of summary judgment, stating that it would deny the writ on that basis, but addressed the merits of the petition because it presented an important issue of law. The Court held that while the determination as to whether an individual is an employee or an independent contractor for purposes of respondeat superior liability generally turns on the degree of control the employer exercises over the individual and that this is generally a question for the trier of fact, NRS 706.473 sets forth various administrative requirements for creating an independent contractor relationship in the taxicab company/driver context that have little to do with employer control. The Court concluded that the district court should have considered whether the requirements of the statute had been met, and whether an independent contractor relationship under NRS 706.473 would allow the taxicab company to avoid liability under a respondeat liability theory. Because the district court had failed to consider these issues and instead summarily denied summary judgment, the Court declined to consider the issue in the first instance through the present writ petition. The Court denied the petition but invited the district court to reconsider the propriety of summary judgment based on NRS 706.473. Writ denied. (Megan Starich, Associate in the Reno office of McDonald Carano Wilson)
Thursday, July 28, 2011
Williams v. Dist. Ct., 127 Nev. Adv. Op. 45 (July 28, 2011)
Before the Court En Banc (Parraguirre and Pickering recused). Opinion by Hardesty.
In these consolidated writ petitions arising from actions involving the hepatitis C outbreak at the endoscopy clinic in Las Vegas, the Court considered: (1) procedurally, whether a writ is a proper vehicle for challenging an adverse evidentiary ruling regarding expert testimony; (2) whether a nurse is per se prohibited from offering an expert opinion regarding causation; and (3) what level of certainty is required for defense expert testimony regarding medical causation if it is offered to contradict the plaintiff’s theory and not as an independent opinion of causation. The Court determined that a writ petition challenging an evidentiary decision generally will not be considered; however, if the petition presents an issue of first impression and fundamental public importance, the Court may choose to consider it. The Court will be more likely to consider a writ petition from an evidentiary ruling if it also serves judicial economy, as in this case where there are multiple actions proceeding in the district courts and two courts had reached contradictory rulings. Addressing the substance of the case, the Court rejected the argument that because the statutory definition of a registered nurse excludes "acts of medical diagnosis" nurses should be prohibited from offering opinions as to medical causation. The Court reaffirmed its flexible, case-specific test for determining if an expert is qualified, holding that a nurse may be qualified to testify regarding causation if he or she has the requisite specialized skills, knowledge, experience or training. The major rule of the opinion reduces the level of certainty a defense medical expert needs to be able to contradict a plaintiff’s theory of causation. The Court reaffirmed that if a defense expert offers an independent theory of causation and does not include the plaintiff’s theory in his or her analysis at all, that opinion must be supported by a reasonable degree of medical probability. However, if a defense expert is offering an opinion of causation that simply calls the plaintiff’s theory into question by comparing it to other possible causes, the expert’s opinion need only be non-speculative, relevant, and supported by competent medical research. Writs of mandamus granted in part and denied in part. (Kerry Doyle, Associate in the Reno office of McDonald Carano Wilson)
In these consolidated writ petitions arising from actions involving the hepatitis C outbreak at the endoscopy clinic in Las Vegas, the Court considered: (1) procedurally, whether a writ is a proper vehicle for challenging an adverse evidentiary ruling regarding expert testimony; (2) whether a nurse is per se prohibited from offering an expert opinion regarding causation; and (3) what level of certainty is required for defense expert testimony regarding medical causation if it is offered to contradict the plaintiff’s theory and not as an independent opinion of causation. The Court determined that a writ petition challenging an evidentiary decision generally will not be considered; however, if the petition presents an issue of first impression and fundamental public importance, the Court may choose to consider it. The Court will be more likely to consider a writ petition from an evidentiary ruling if it also serves judicial economy, as in this case where there are multiple actions proceeding in the district courts and two courts had reached contradictory rulings. Addressing the substance of the case, the Court rejected the argument that because the statutory definition of a registered nurse excludes "acts of medical diagnosis" nurses should be prohibited from offering opinions as to medical causation. The Court reaffirmed its flexible, case-specific test for determining if an expert is qualified, holding that a nurse may be qualified to testify regarding causation if he or she has the requisite specialized skills, knowledge, experience or training. The major rule of the opinion reduces the level of certainty a defense medical expert needs to be able to contradict a plaintiff’s theory of causation. The Court reaffirmed that if a defense expert offers an independent theory of causation and does not include the plaintiff’s theory in his or her analysis at all, that opinion must be supported by a reasonable degree of medical probability. However, if a defense expert is offering an opinion of causation that simply calls the plaintiff’s theory into question by comparing it to other possible causes, the expert’s opinion need only be non-speculative, relevant, and supported by competent medical research. Writs of mandamus granted in part and denied in part. (Kerry Doyle, Associate in the Reno office of McDonald Carano Wilson)
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