Before The Court En Banc. Opinion by Saitta.
Daane, a homeowner against whose property real-party-in-interest CitiMortgage is attempting to foreclose, sought a writ of prohibition preventing a second foreclosure mediation proceeding from beginning because CitiMortgage had been sanctioned for participating in the previous foreclosure mediation in bad faith. The Court denied the writ, holding that Daane had an adequate remedy at law because he could file a petition for judicial review of the mediator’s decision. Implicitly, the Court is suggesting that a lender who has been denied a letter of certification that would allow a foreclosure to proceed, can simply file a new notice of default and begin the mediation process again. Petition denied. (Kerry S. Doyle, Associate in the Reno 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)
City of North Las Vegas v. State, EMRB, 127 Nev. Adv. Op. 57 (Sept. 29, 2011)
Before the Court en banc. Opinion by Cherry.
In this appeal from a petition for judicial review of a decision of the Employee-Management Relations Board (the “Board”), the Court held that the doctrine of equitable tolling applies to NRS 288.110(4)’s six month limitations period in which an employee must make a complaint to the Board. The Court adopted the federal approach to treating the similar federal rule, specifically adopting the “unequivocal notice” rule – which states that the six month limitations period begins to run when the employee receives “unequivocal notice of a final adverse decision” – and applying the doctrine of equitable tolling to the period as it would to any statute of limitations period. Because the employee in this case diligently pursued his claims after discovering his employer’s allegedly discriminatory treatment of him, the Board properly tolled the limitations period and allowed the claims to go forward. In looking at the merits of the Board’s decision regarding Appellant’s claim of gender discrimination, the Court specifically adopted the Second and Seventh Circuits’ test for determining whether two employees are similarly situated: a court should compare several factors including “(1) whether the employees were subject to the same performance evaluation standards; (2) whether the employees engaged in comparable conduct; (3) whether the employees dealt with the same supervisor; (4) whether the employees were subject to the same disciplinary standards; and (5) whether the employees had comparable experience, education, and qualifications, if the employer took these factors into account in making its decision.” The Court further ruled that the determination of whether employees are similarly situated is a factual finding entitled to deference on appellate review. Petition for judicial review denied. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson)
In this appeal from a petition for judicial review of a decision of the Employee-Management Relations Board (the “Board”), the Court held that the doctrine of equitable tolling applies to NRS 288.110(4)’s six month limitations period in which an employee must make a complaint to the Board. The Court adopted the federal approach to treating the similar federal rule, specifically adopting the “unequivocal notice” rule – which states that the six month limitations period begins to run when the employee receives “unequivocal notice of a final adverse decision” – and applying the doctrine of equitable tolling to the period as it would to any statute of limitations period. Because the employee in this case diligently pursued his claims after discovering his employer’s allegedly discriminatory treatment of him, the Board properly tolled the limitations period and allowed the claims to go forward. In looking at the merits of the Board’s decision regarding Appellant’s claim of gender discrimination, the Court specifically adopted the Second and Seventh Circuits’ test for determining whether two employees are similarly situated: a court should compare several factors including “(1) whether the employees were subject to the same performance evaluation standards; (2) whether the employees engaged in comparable conduct; (3) whether the employees dealt with the same supervisor; (4) whether the employees were subject to the same disciplinary standards; and (5) whether the employees had comparable experience, education, and qualifications, if the employer took these factors into account in making its decision.” The Court further ruled that the determination of whether employees are similarly situated is a factual finding entitled to deference on appellate review. Petition for judicial review denied. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson)
Thursday, September 8, 2011
Otak Nevada, LLC v. Dist. Ct., 127 Nev. Adv. Op. 53 (Sept. 8, 2011)
Before Saitta, Hardesty and Parraguirre. Opinion by Hardesty.
In this writ proceeding regarding personal injury and death caused by non-residential construction design malpractice, the Court addressed whether a complaint alleging non-residential construction design malpractice is void ab initio unless the required attorney affidavit and expert report supporting the claims are served concurrently. The Court construed NRS 11.258, which mandates the attorney affidavit and expert opinion, in same fashion as the similar statute requiring such supporting documents for claims of medical malpractice. Because the statute states a clear requirement for the supporting documentation and mandates that a district court dismiss a complaint for failure to comply, a complaint without the supporting affidavit and expert report is void ab initio and the district court is without authority to grant leave to amend. Furthermore, each party must file their own affidavit and expert report and may not rely on those provided by another party. The Court ordered the district court to set aside its orders allowing amendment and grant the motion to dismiss. Petition granted. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson)
In this writ proceeding regarding personal injury and death caused by non-residential construction design malpractice, the Court addressed whether a complaint alleging non-residential construction design malpractice is void ab initio unless the required attorney affidavit and expert report supporting the claims are served concurrently. The Court construed NRS 11.258, which mandates the attorney affidavit and expert opinion, in same fashion as the similar statute requiring such supporting documents for claims of medical malpractice. Because the statute states a clear requirement for the supporting documentation and mandates that a district court dismiss a complaint for failure to comply, a complaint without the supporting affidavit and expert report is void ab initio and the district court is without authority to grant leave to amend. Furthermore, each party must file their own affidavit and expert report and may not rely on those provided by another party. The Court ordered the district court to set aside its orders allowing amendment and grant the motion to dismiss. Petition granted. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson)
Thursday, August 4, 2011
City of Oakland v. Desert Outdoor Adver., 127 Nev. Adv. Op. 46 (Aug. 4, 2011)
Before the Court en banc. Opinion by Cherry.
This is an appeal related to the enforcement of a California judgment in Nevada based on the Uniform Enforcement of Foreign Judgments Act (“UEFJA”) codified in NRS 17.330-400. The Court found that penal judgments are exempted from the requirements of the UEFJA and are, therefore, not entitled to full faith and credit under Nevada’s UEFJA. The determination of whether a judgment is considered penal rests on whether the statute provides civil penalties for an offense against the public or whether the statute creates a right of action to compensate a private person or entity.
Oakland obtained a judgment against Desert Outdoor for violating a municipal code prohibiting the erection of sign advertising a business not located on the property on which the sign was erected. The judgment was obtained under the California Business and Professions Code section 5485, which provided penalties for advertising displays posted in violation of local ordinances. Thereafter, Oakland filed its judgment in the Second Judicial District Court. The Nevada UEFJA states that a foreign judgment which is entitled to full faith and credit in Nevada is treated as a domestic judgment. Citing to Huntington v. Attrill, 146 U.S. 657 (1892), the Court reiterated that the courts of one state cannot execute the penal laws of another. Oakland unsuccessfully argued that Huntington was superseded by the UEFJA. The Court found that Oakland’s penal judgment against Desert Outdoor fell outside the scope of the UEFJA because it was not entitled to full faith and credit in Nevada. The Court determined that the California legislature’s intent in creating the applicable penalties was to address public wrongs, not private harms. Oakland was not a private entity enforcing a civil right. (Joseph P. Schrage, Associate in the Las Vegas office of McDonald Carano Wilson)
This is an appeal related to the enforcement of a California judgment in Nevada based on the Uniform Enforcement of Foreign Judgments Act (“UEFJA”) codified in NRS 17.330-400. The Court found that penal judgments are exempted from the requirements of the UEFJA and are, therefore, not entitled to full faith and credit under Nevada’s UEFJA. The determination of whether a judgment is considered penal rests on whether the statute provides civil penalties for an offense against the public or whether the statute creates a right of action to compensate a private person or entity.
Oakland obtained a judgment against Desert Outdoor for violating a municipal code prohibiting the erection of sign advertising a business not located on the property on which the sign was erected. The judgment was obtained under the California Business and Professions Code section 5485, which provided penalties for advertising displays posted in violation of local ordinances. Thereafter, Oakland filed its judgment in the Second Judicial District Court. The Nevada UEFJA states that a foreign judgment which is entitled to full faith and credit in Nevada is treated as a domestic judgment. Citing to Huntington v. Attrill, 146 U.S. 657 (1892), the Court reiterated that the courts of one state cannot execute the penal laws of another. Oakland unsuccessfully argued that Huntington was superseded by the UEFJA. The Court found that Oakland’s penal judgment against Desert Outdoor fell outside the scope of the UEFJA because it was not entitled to full faith and credit in Nevada. The Court determined that the California legislature’s intent in creating the applicable penalties was to address public wrongs, not private harms. Oakland was not a private entity enforcing a civil right. (Joseph P. Schrage, Associate in the Las Vegas office of McDonald Carano Wilson)
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)
Gallegos v. Malco Enterprises of Nevada, 127 Nev. Adv. Op. 51 (August 4, 2011).
Before Saitta, Hardesty and Parraguirre. Opinion by Parraguirre.
In this appeal from a summary judgment decision in an insurance action, the Nevada Supreme Court clarifies that rights of action held by a judgment debtor are subject to execution toward satisfaction of a judgment under NRS 21.080, and may be judicially assigned pursuant to NRS 21.320. In making this determination, the Court first held that so long as a right of action is “property . . . not exempt from execution,” it may be judicially assigned in satisfaction of a judgment. See NRS 21.320. The Court then turned to NRS 21.080(1) to determine whether a right of action is “property . . . exempt from execution.” NRS 21.080(1) provides that “[a]ll goods, chattels, money and other property, real and personal, of the judgment debtor, or any interest therein of the judgment debtor not exempt by law, and all property and rights of property seized and held under attachment in the action are liable to execution.” The Court also considered NRS 10.045, which applies to the entire statutory title, including NRS 21.080, and defines personal property as including “money, goods, chattels, things in action and evidences of debt.” Accordingly, based upon the plain language of these statutes, the Court found that rights of action held by a judgment debtor are personal property subject to execution in satisfaction of a judgment. Reversed and remanded for further proceedings. (Amanda C. Yen, Associate in the Las Vegas office of McDonald Carano Wilson)
In this appeal from a summary judgment decision in an insurance action, the Nevada Supreme Court clarifies that rights of action held by a judgment debtor are subject to execution toward satisfaction of a judgment under NRS 21.080, and may be judicially assigned pursuant to NRS 21.320. In making this determination, the Court first held that so long as a right of action is “property . . . not exempt from execution,” it may be judicially assigned in satisfaction of a judgment. See NRS 21.320. The Court then turned to NRS 21.080(1) to determine whether a right of action is “property . . . exempt from execution.” NRS 21.080(1) provides that “[a]ll goods, chattels, money and other property, real and personal, of the judgment debtor, or any interest therein of the judgment debtor not exempt by law, and all property and rights of property seized and held under attachment in the action are liable to execution.” The Court also considered NRS 10.045, which applies to the entire statutory title, including NRS 21.080, and defines personal property as including “money, goods, chattels, things in action and evidences of debt.” Accordingly, based upon the plain language of these statutes, the Court found that rights of action held by a judgment debtor are personal property subject to execution in satisfaction of a judgment. Reversed and remanded for further proceedings. (Amanda C. Yen, Associate in the Las Vegas office of McDonald Carano Wilson)
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