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).

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).

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.)

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.)

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!

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.)

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).

Mountain View Rec. v. Imperial Commercial, 129 Nev. Adv. Op. 45 (July 3, 2013)

Before the Court en banc. Opinion by Justice Hardesty.
In this appeal, the Court reviewed whether the district court had abused its discretion by granting a motion to change venue from Nye County to Clark County based on the doctrine of forum non conveniens and a finding that courtroom facilities in Pahrump were inadequate for trial. The motion, filed by one of the defendants, argued that Las Vegas would be more convenient insofar as (1) the majority of pretrial litigation and discovery had taken place in Las Vegas, (2) the physical evidence, special master, and majority of counsel, were located in Las Vegas, (3) experts would have to travel through Las Vegas to get to Pahrump, (4) the majority of plaintiff’s witnesses would not have to travel to Las Vegas from Pahrump, and (5) the transfer would not result in a reassignment of judges insofar as a senior judge had already been assigned. The Court reversed, concluding that the record was insufficient to support the district court’s finding of inconvenience under NRS 13.050 and Eaton v. Second Judicial Dist. Court, 96 Nev. 73, 774-75, 616 P.2d 400, 401 (1980), because respondent had failed to offer any affidavits or evidence establishing the extraordinary circumstances needed to change venue under Eaton. Additionally, the district court failed to recognize the obligation of Nye County under NRS 3.100(2) and Angell v. Eighth Judicial District Court, 108 Nev. 923, 839 P.2d 1329 (1992), to provide adequate facilities for the litigation. Finally, the district court failed to consider and respondents failed to offer evidence concerning the congestion of the Clark County district court’s docket in determining whether it could accommodate the trial if transferred. The Court adopted the rule from Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1337 (9th Cir. 1984) and GeoChem Tech Corp. v. Verseckes, 962 S.W.2d 541, 543 (Tex. 1998), imposing the burden on the movant to demonstrate that a change in venue will result in a speedier resolution of the matter. Reversed and remanded. (David Stoft, Associate in the Las Vegas office of McDonald Carano Wilson.)

Frei v. Goodsell, 129 Nev. Adv. Op. 43 (July 3, 2013)

Before Justices Hardesty, Parraguirre, and Cherry. Opinion by Justice Parraguirre.
In this appeal from an attorney malpractice action stemming from trust litigation, the appellant raises two unrelated issues stemming from an action to void certain documents that transferred assets among two revocable trusts benefitting the appellant’s and his wife’s children from other marriages. Appellant’s attorney, acting at the instruction of appellant’s agent, who had been appointed as both appellant’s attorney-in-fact and as trustee to appellant’s wife’s trust, prepared certain transfer documents for appellant’s signature. Although the attorney never personally met with appellant, appellant signed the documents, which resulted in the transfer of $1 million of appellant’s assets to his wife’s trust. After his wife’s death, Appellant sought to void the documents and filed a legal malpractice action against his attorney. The first issue concerns whether the district court properly denied a motion in limine to preclude the attorney from arguing that an attorney-client relationship did not exist when the district court had previously determined, in the trust litigation concerning the documents, that such a relationship existed and created a conflict of interest. In resolving this issue, the court applied the four-part issue preclusion test from Five Star Capital Corp. v. Ruby, 124 Nev. 1048, 1052, 194 P.3d 709, 711 (2008), and determined that only the fourth element (whether “the issue was actually and necessarily litigated”) was in dispute. The court concluded that, while the existence of an attorney-client relationship was actually litigated, it was not necessarily litigated. In Nevada, issue preclusion will only apply if a matter was necessary to the prior judgment. Analogizing to a factually similar Massachusetts Supreme Judicial Court decision, the court held that resolving the underlying trust litigation did not depend on whether an attorney-client relationship existed and, therefore, that issue was not necessarily litigated in the trust action and issue preclusion did not apply. The second issue the Court addressed concerned whether the district court properly excluded parol evidence to demonstrate the appellant’s intent in executing the documents that ultimately resulted in the $1 million transfer. Appellant conceded that the documents were unambiguous, but he argued that the documents did not meet his objectives. The Court held that parol evidence is not admissible to demonstrate intent where the language of a document is clear on its face and, therefore, the district court properly excluded the evidence. The Court further reiterated that its statement in Russ v. General Motors Corp., 111 Nev. 1431, 1438-39, 906 P.2d 718, 723 (1995), that a court should consider evidence of intent to determine whether a document is susceptible to interpretation is not the law as it has been discredited in another published opinion as dicta. In a footnote, the Court also stated that it was not clear whether the parol evidence rule should apply at all when a party seeks recovery for legal malpractice and is not seeking to contradict the terms of a document. The Court could not address that that question as it was not properly presented in this appeal. Affirmed. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson).

Halcrow, Inc. v. Eighth Jud. Dist. Ct., 129 Nev. Adv. Op. 42 (June 27, 2013)

Before the Court En Banc. Opinion by Justice Saitta.
In this petition for writ of mandamus challenging a district court order granting motions for leave to amend to add claims for negligent misrepresentation against a design professional in the commercial construction context, the Court examined the economic loss doctrine’s applicability to negligent misrepresentation claims. The Court had previously left open the question of whether the economic loss doctrine barred a claim for negligent misrepresentation in Terracon Consultants Western, Inc. v. Mandala Resort Group, 125 Nev. 66, 206 P.3d 81 (2009). The original proceeding in this case stemmed from the construction of the Harmon Tower within CityCenter. The developer, MGM Mirage Design Group (“MGM”), retained an architectural firm and Perini Building Company (“Perini”) as its general contractor. The architectural firm retained the petitioner, Halcrow, to design the Harmon’s structure, and Perini hired Century Steel, Inc. (“Century”) to provide the steel installation, who ultimately assigned its assets to Pacific Coast Steel (“PCS”). Halcrow had no contract with Perini, Century, or PCS. After Perini filed a complaint against the MGM for failing to make timely payments, the MGM filed counterclaims against Perini for alleged reinforcing steel defects and other nonconforming work. Perini then filed a third-party complaint against Century and PCS, who in turn filed their own third and fourth party complaints against Halcrow, among others. Halcrow moved to dismiss Century’s third and fourth party complaints, arguing that Terracon bars unintentional tort claims against design professionals in commercial construction projects when the claimant incurs primarily economic losses. The district court dismissed Century’s and PCS’s claims for negligence, among others, but allowed Century and PCS leave to amend to allege a claim for negligent misrepresentation against Halcrow for allegedly negligently representing to Century and PCS that it would inspect and make on-site adjustments to the steel installation. The Court exercised its discretion to review this writ petition, and examined the economic loss doctrine’s application in Nevada. The Court clarified that there are certain exceptions to the economic loss doctrine where “strong countervailing considerations weigh in favor of imposing liability,” including claims for “defamation, intentionally caused harm, negligent misstatements about financial matters and loss of consortium.” However, the Court reasoned that in the context of commercial construction design professionals, contract law is better suited for resolving such claims. Therefore, the Court held that in commercial construction defect litigation, the economic loss doctrine applies to bar claims against design professionals for negligent misrepresentation where the damages alleged are purely economic. Writ of mandamus granted directing district court to vacate its order granting Century and PCS leave to amend. (Megan Starich, Associate in the Reno office of McDonald Carano Wilson LLP).

Bergenfield v. Bank of Am., 129 Nev. Adv. Op. 40 (June 6, 2013)

Before Justices Gibbons, Douglas, and Saitta. Opinion by Justice Douglas.
In this appeal, the Court held that in the context of Nevada’s Foreclosure Mediation Program, when the deed of trust to real property and the promissory note are held by two different entities at the time of mediation, the attendance at the mediation by the holder of a promissory note does not meet the statutory requirement that the deed of trust beneficiary attend and participate in good faith. Appellant obtained a home loan from Countrywide Home Loans, Inc. and executed a promissory note in Countrywide’s favor. The note was secured by a deed of trust naming Mortgage Electronic Registration Systems, Inc. as beneficiary of the deed of trust, who subsequently assigned its interest in the deed of trust to HSBC Bank USA. Countrywide endorsed the promissory note in blank, which meant that the holder of the note would be entitled to payment under the terms of the note. The Appellant defaulted on the loan and elected to participate in the Foreclosure Meditation Program. Bank of America, the acquirer of Countrywide, held the note and, through a representative, attended the mediation. HSBC did not attend at all. The Court held that a party seeking a nonjudicial foreclosure on a deed of trust of an owner-occupied residence must demonstrate that it is the current beneficiary of the deed of trust and the holder of the promissory note. This is because the deed of trust is a lien on the property, but the holder of the promissory note is the party entitled to repayment. Foreclosure under NRS Chapter 107 is only proper when the deed of trust and the promissory note are held by the same party. NRS 107.086(4) requires that the beneficiary of the deed of trust attend the mediation, and the Foreclosure Mediation Program certificate, which ultimately permits the beneficiary to proceed with foreclosure, cannot be issued if the beneficiary fails to attend. The deed of trust and the promissory note, therefore, must be reunified prior to the mediation. Because Bank of America was not the beneficiary of the deed of trust, it was not permitted to nonjudicially foreclose on the property. The Court further issued sanctions against Bank of America for holding itself out as the beneficiary of the deed of trust. Reversed. (Joseph Schrage, Associate in the Las Vegas office of McDonald Carano Wilson LLP.)

City of Sparks v. Sparks Mun. Court, 129 Nev. Adv. Op. 38 (May 30, 2013)

Before the Court En Banc. Opinion by Justice Hardesty.
In this appeal from a district court order granting a preliminary injunction, the Court considered 1) whether the City of Sparks could interfere with the Sparks Municipal Court’s control over its own personnel decisions, and 2) what, if any, influence the city may exert over the budget the city allocates to the court. The dispute arose when the Sparks City Council asked the Municipal Court to reduce the salaries of its court administrator and judicial assistant. After unsuccessful attempts to resolve the dispute via proposed amendments to the city charter, the Municipal Court filed a complaint with the district court for injunctive relief, which the district court granted, and the city subsequently appealed. With respect to the first issue, the Court examined Article 15, Section 11 of the Nevada Constitution, which permits a municipality to enact charter provisions governing the tenure and dismissal of any municipal “officer or employee.” Finding that Section 11 was ambiguous on its face, the Court looked past the plain language of the provision to the intent of the voters who approved the provision, and concluded that the provision was meant to apply only to officers, not employees. The Court then held that the city’s interference with the municipal court’s personnel decisions violated the separation of powers doctrine and infringed upon the inherent power of the judiciary to manage its internal affairs free from intrusion from any other branch of government. Regarding the second issue, however, the Court found that the parties had failed to develop the record sufficiently enough for the Court to rule. The Court reversed the district court’s ruling with respect to this issue and remanded the case for further proceedings to develop the record and determine whether any actual controversy still existed. In a separate opinion, Chief Justice Pickering concurred with the majority’s decision to reverse and remand, but dissented with respect to the majority’s decision to look past a plain reading of Section 11, which on its face clearly gives the city the authority to determine the terms of employment of the employees at issue in this case. Affirmed in part, reversed in part, and remanded. (Jeff S. Riesenmy, Associate in the Las Vegas office of McDonald Carano Wilson.)

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.)

Chapman v. Deutsche Bank Nat'l Trust Co., 129 Nev. Adv. Op. 34 (May 30, 2013)

Before the Court En Banc. Opinion by Chief Justice Pickering.
In this matter, in which the Ninth Circuit Court of Appeals certified two questions to the Nevada Supreme Court, the Court considered whether the following actions are properly characterized as proceedings in personam (in which a judgment acts only upon the parties to the suit), in rem (a proceeding taken directly against property, in which a judgment applies against the entire world), or quasi in rem (a proceeding to determine rights in certain property; i.e., “a halfway house between in rem and in personam proceedings): 1) a quiet title action under NRS 40.010, which is premised on an allegedly invalid trustee’s sale under NRS 107.080(5)(a); and 2) an unlawful detainer action under NRS 40.255(1)(c). The Court concluded that a quiet title action is “predominately in rem or quasi in rem,” because its primary purpose was to establish title to real property. In so holding, the Court rejected Deutsche Bank’s argument that a quiet title action in which the plaintiff also seeks monetary damages changes the nature of the proceeding to an in personam proceeding. The Court also concluded that although an unlawful detainer action “does not adjudicate title or an absolute right to possession of property,” an unlawful detainer action is nevertheless a proceeding in rem or quasi in rem because its purpose is to determine rights to possession – a lesser property interest than title, but a property interest nonetheless – as between a plaintiff and a defendant. Having so concluded, the Court answered the certified questions in the affirmative. (Patrick J. Murch, Associate in the Las Vegas office of McDonald Carano Wilson.)

Galardi v. Naples Polaris, LLC, 129 Nev. Adv. Op. 33 (May 16, 2013)

Before Chief Justice Pickering, Justices Hardesty and Saitta. Opinion by Chief Justice Pickering.
In this appeal, the court examined Nevada law on contract interpretation in determining whether a real estate option contract required the buyer or the seller to remove an encumbrance on the property subject to the contract upon the sale. At issue on appeal was whether the district court properly considered evidence of trade usage to determine that the contract was unambiguous and, therefore, exclude parol evidence. The Court adopted the modern standard regarding trade usage and held that ambiguity in a contract is not required before evidence of trade usage or custom can be used to ascertain or illuminate contract terms. Applying this principle, the Court found that the district court properly deemed an expert’s affidavit regarding trade usage admissible and that the option contract was unambiguous in light of the trade usages established by the expert affidavit. The Court further determined that the seller’s deposition testimony regarding his subjective understanding of the contract’s terms was inadmissible under the parol evidence rule because it contradicted the contract’s express terms, and that the testimony was not relevant to contradict the expert’s testimony on industry usage and custom. Because the seller’s testimony was either inadmissible or irrelevant or both, the Court held it was insufficient to create a genuine issue of material fact to defeat summary judgment, affirming the district court’s grant of summary judgment. Affirmed. (Megan Starich, Associate in the Reno office of McDonald Carano Wilson LLP.)

City of Las Vegas v. Evans, 129 Nev. Adv. Op. 31 (May 2, 2013)

Before Justices Gibbons, Douglas, and Saitta. Opinion by Justice Saitta.
In this appeal from a denial of a petition for judicial review in a workers’ compensation matter, the Court considered two issues: (1) whether a firefighter could still seek workers’ compensation benefits without obtaining the benefit of a specific rebuttable presumption provided by NRS 617.453; and (2) whether substantial evidence supported an appeals officer’s decision that a firefighter’s cancer was a compensable occupational disease. NRS 617.440 outlines the requirements for proving a compensable occupational disease and NRS 617.358(1) requires that an employee prove “by a preponderance of the evidence that the employee’s occupational disease arose out of and in the scope of his or her employment.” These two provisions, however, do not apply to claims filed under NRS 617.453, which establishes a conditional rebuttable presumption that a firefighter’s cancer arose out of his or her employment if he or she has been employed as a firefighter full-time for five or more years. The Court analyzed the relationship between these statutes and concluded that when a workers' compensation claimant fails to meet a condition necessary to receive the benefit of the presumption set forth in NRS 617.453, this results in only the loss of the presumption and does not preclude the claimant from obtaining compensation under the more general statutory requirements. In this case, the employee had only been employed as a full-time firefighter for four years. Even though he was not entitled to the rebuttable presumption of NRS 617.453, he could still obtain compensation by demonstrating the disease arose out of and in the scope of his employment. The court further held that substantial evidence supported the appeals officer’s conclusion that the employee’s cancer was a compensable occupational disease. Affirmed. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson).

Sylver v. Regents Bank, N.A., 129 Nev. Adv. Op. 30 (May 2, 2013)

Before Justices Hardesty, Parraguirre, and Cherry. Opinion by Justice Parraguirre.
In this appeal, the Court announced a standard for determining if an arbitration award was obtained through undue means, and addressed whether an arbitrator manifestly disregarded the law by refusing to void a loan transaction. Respondent bank obtained an arbitration award against appellant borrower. In obtaining the award, Respondent used deposition testimony for a key witness whom Respondent represented was unavailable to appear at the arbitration hearing. Both parties examined the witness at a deposition. When Respondent filed a motion in district court to confirm the arbitration award, Appellant offered evidence that Respondent had misrepresented the unavailability of the witness, who actually would have been available and willing to appear at the arbitration hearing. The district court confirmed the award. Appellant challenged the award on appeal, arguing that the award had been obtained using undue means. The Court interpreted the meaning of “undue means” in NRS 38.241 to comport with the federal standard providing that the challenging party faces the burden of establishing by clear and convincing evidence that the other party obtained the award by engaging in intentional misconduct that could not have been discovered with the exercise of due diligence. The Court held that (1) Respondent’s representation about the witness, even if incorrect, did not rise to the level of corruption or fraud required to establish undue mean; (2) the witness’s availability was discoverable through due diligence; and (3) appellant showed no causal connection between the award and the alleged misrepresentation. The second issue on appeal was whether the arbitrator manifestly disregarded the law in refusing to void one of the subject loans, on the grounds that Respondent had never sought a certificate of exemption before engaging in mortgage banking, as required by NRS 645E.910. The arbitrator had noted the failure to obtain a certificate, but recognizing that no civil remedy existed for this statutory violation, held that the unintentional violation had no materiality to the parties’ dispute. On appeal, the court noted that the “manifest disregard” standard does not inquire whether the arbitrator incorrectly interpreted the law, but whether the arbitrator, knowing the law required a particular result, simply disregarded it. Appellant did not meet this “very high hurdle.” The court declined to address the issue of whether the failure to comply with a licensing requirement renders a contract unenforceable, because the operative standard of review in the case did not entail plenary judiciary review. Affirmed. (Mark W. Dunagan, Associate in the Reno office of McDonald Carano Wilson.)

Falconi v. Secretary of State, 129 Nev. Adv. Op. 28 (April 25, 2013)

Before Justices Hardesty, Parraguirre, and Cherry. Opinion by Justice Cherry.
In this extraordinary writ proceeding, the Court analyzed whether a co-parent with joint custody of a child, Falconi, may seek the disclosure of the fictitious address of the other co-parent, Farrar, which was obtained from the Secretary of State based on evidence of domestic violence by Falconi. The Court determined that a TRO issued to Farrar following a physical altercation at the parties’ shared residence was sufficient to support the issuance of the fictitious address to Farrar under NRS 217.462. The Secretary of State was obligated to issue the fictitious address based on the TRO and was neither required nor authorized by statute to inquire into whether the TRO was issued based on a finding of domestic violence or a finding or a potential threat of violence. As for Falconi’s request for Farrar’s confidential address, the Court adopted the reasoning of Sacharow v. Sacharow, 826 A.2d 710, 714 (N.J. 2003), which balanced the competing interests of one parent’s need for confidentiality against the need for the other parent to know where the child was living. In Sacharow, the court placed the burden on the parent with the confidential address to establish that he or she was the victim of domestic violence at the hands of the other parent, and that he or she reasonably feared future violence. If established, the burden shifts to the other parent to establish that, based on other factors, address confidentiality is not in the child’s best interest. As applied in Nevada, the Sacharow analysis comes into play after the parent seeking the confidential address establishes that he or she shares joint legal custody. Ultimately, the Court denied the writ, finding that the district court was the appropriate court to make the pertinent factual determinations. The Court specifically indicated that its decision did not impair Falconi’s right to seek relief in the district court. Petition denied. (David Stoft, Associate in the Las Vegas office of McDonald Carano Wilson).

Rock Bay, LLC v. Dist. Ct., 129 Nev. Adv. Op. 21 (April 4, 2013)

Before Chief Justice Pickering and Justices Hardesty and Siatta. Opinion by Justice Hardesty In this petition for a writ of prohibition, the Court considered when discovery of a nonparty’s assets is permissible under NRCP 69(a), which allows for post-judgment discovery in aid of execution of a judgment. The creditors had obtained a judgment in Florida against a group of debtors. During the course of the Florida litigation, there was a series of transfers between the debtors and Rock Bay. Rock Bay was an entity that was deeply intertwined with the judgment debtors and the managing member of Rock Bay was Maybourne, Inc., an entity having the same address as the judgment debtors. The judgment creditors domesticated the Florida judgment in Nevada. Shortly thereafter, Rock Bay was dissolved. The judgment creditors subpoenaed Rock Bay’s and Maybourne’s accounting records and Rock Bay’s financial records. Petitioners, Rock Bay and Maybourne moved to quash, which the district court denied. The Court concluded that discovery of a nonparty’s assets under NRCP 69(a) is not permissible absent special circumstances such as situations in which the judgment debtor and the nonparty have a relationship which raises a reasonable suspicion as to the good faith of asset transfers between the two parties or when the nonparty is the alter ego of the judgment debtor. Thus, the Court determined that the subpoenas issued against Rock Bay were permissible even when considering Rock Bay’s privacy interests in financial records because there was a relationship between the judgment debtors and Rock Bay which raised a reasonable suspicion as to the good faith of the transfers between the parties. However, the Court concluded that the district court improperly declined to quash the subpoena issued against Maybourne as there was no evidence that Maybourne ever held or transferred assets with the judgment debtors nor did the judgment creditors ever assert that Maybourne was an alter ego. Petition denied in part and granted in part. (Amanda M. Perach, Associate in the Las Vegas office of McDonald Carano Wilson).

Ivey v. Dist. Ct., 129 Nev. Adv. Op. 16 (March 28, 2013)

Before the Court en banc. Opinion by Justice Gibbons.
In this original petition for a writ of mandamus or prohibition, the Court considered whether the district court’s failure to order recusal of a family court judge in connection with certain campaign contributions by parties and attorneys involved in the action violated the petitioners due process rights or Nevada law. Petitioner Luciaetta Ivey and her then spouse, Phil Ivey, filed a joint petition for divorce in the Eighth Judicial District; the case was assigned to Judge William Gonzalez. The parties entered into a marital settlement agreement that set forth, among other things, the monthly alimony payment to Luciaetta. After entry of the divorce decree, Judge Gonzalez successfully ran for re-election. During the campaign for reelection, the Phil, his attorney, his attorney’s wife, and his attorney’s law partner and Luciaetta’s law firm made various cash donations exceeding $10,000 and in-kind contributions to Judge Gonzalez’s campaign. The total cash contributions represented approximately 14% of all contributions to the campaign; the in-kind contributions totaled 25% of all in-kind contributions; Phil’s cash contribution alone equaled 7% of all cash contributions. After the election, a dispute arose over the monthly alimony payments and Judge Gonzalez was assigned to hear Luciaetta’s motion to reopen discovery. Luciaetta sought Judge Gonzalez’s recusal from the new proceeding arguing that the campaign contributions created an appearance of impropriety that resulted in a denial of Due Process and violated Nevada law. Relying on Caperton v. A. T. Massey Coal Co., 556 U.S. 868 (2009), the Court held that denial of the motion to disqualify did not violate Luciaetta’s due process rights because the size of the contributions at issue, compared to the total sum spent during the campaign, and the effect that contribution may have had on the election’s outcome, did not rise to a level “where the probability of actual bias is too high to ensure the protection of” Luciaetta’s rights. The Court concluded that the amount of donations by the spouse and attorney’s did not rise to the “exceptional” level that existed in Caperton, nor was the timing suspicious because the contributions were made after the entry of the divorce decree. Luciaetta also argued that Judge Gonzalez’s disqualification was required under NRS 1.230 and the Rule 2.11 of the Nevada Code of Judicial Conduct (NCJC) (now the Revised Nevada Code of Judicial Conduct). Because the contributions made were within the statutory limits for campaign contributions and the timing of the contributions was not suspicious, the Court rejected Luciaetta’s argument. In a concurring opinion, Justice Hardesty (joined by Chief Justice Pickering, and Justices Parraguirre and Douglas) wrote to address criticism of the NCJC. Justice Hardesty noted that the Nevada Supreme Court initiated a thorough review of the NCJC in 2009 which included a study on campaign finance rules in light of the Caperton decision. Despite public comments, the Court voted to adopt the RNCJC without inclusion of the committee’s recommendations on this issue. In a second concurring opinion, Justice Saitta wrote separately to voice concerns with the current judicial campaign contribution rules. Writ petition denied. (Kristen T. Gallagher, Associate in the Las Vegas office of McDonald Carano Wilson).