Before Justices Douglas, Hardesty, and Parraguirre. Opinion by Justice Parraguirre.
In this appeal, the Court addressed NRS 41.141, Nevada’s comparative negligence statute, and whether it allowed for the apportionment of a damages award between negligent and intentional tortfeasors. Concluding that NRS 41.141 is ambiguous and turning to the legislative history and intent, the Court determined that “negligence” in the statute meant “fault”. As such, liability could be apportioned between negligent and intentional tortfeasors. The negligent tortfeasor was severally liable up to the level of fault found by the jury; the intentional tortfeasor was jointly and severally liable for the entire amount of damage. Reversed and remanded for the district court to enter a modified judgment. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
Thursday, March 1, 2012
Finkel v. Cashman Professional, Inc., 128 Nev. Adv. Op. 6 (March 1, 2012)
Before Justices Saitta, Hardesty, and Parraguirre. Opinion by Justice Parraguirre.
In this consolidated appeal from an order granting a preliminary injunction and an order refusing to dissolve the preliminary injunction, the Court applied the test for preliminary injunction and then addressed an issue of first impression in Nevada: whether non-competition provisions of an agreement should continue to be enforced after the expiration of the agreement. The agreement in this case prohibited appellant from competing against the respondent’s business, hiring respondent’s employees, making disparaging remarks about respondent, and disclosing any non-public information regarding the nature of respondent’s business. During the term of the agreement, appellant took many of those actions. Based on factual findings regarding appellant’s breach of the agreement, the district court entered a preliminary injunction binding appellant to the terms of the agreement; the Court affirmed the order granting the injunction. After the agreement expired, appellant moved to dissolve the injunction and the district court refused. The Court reversed the district court, holding that the injunction should have been dissolved except as to those portions of the injunction designed to protect respondent’s trade secrets. The Court held that the district court had not correctly applied the factors for extending an injunction under the Uniform Trade Secrets Act and reversed and remanded for appropriate consideration of those factors. Reversed and remanded. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
In this consolidated appeal from an order granting a preliminary injunction and an order refusing to dissolve the preliminary injunction, the Court applied the test for preliminary injunction and then addressed an issue of first impression in Nevada: whether non-competition provisions of an agreement should continue to be enforced after the expiration of the agreement. The agreement in this case prohibited appellant from competing against the respondent’s business, hiring respondent’s employees, making disparaging remarks about respondent, and disclosing any non-public information regarding the nature of respondent’s business. During the term of the agreement, appellant took many of those actions. Based on factual findings regarding appellant’s breach of the agreement, the district court entered a preliminary injunction binding appellant to the terms of the agreement; the Court affirmed the order granting the injunction. After the agreement expired, appellant moved to dissolve the injunction and the district court refused. The Court reversed the district court, holding that the injunction should have been dissolved except as to those portions of the injunction designed to protect respondent’s trade secrets. The Court held that the district court had not correctly applied the factors for extending an injunction under the Uniform Trade Secrets Act and reversed and remanded for appropriate consideration of those factors. Reversed and remanded. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
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, February 16, 2012
In re Estate of Melton, 128 Nev. Adv. Op. 4 (February 16, 2012)
Before Court en banc. Per Curiam Opinion.
In this appeal from an order denying enforcement of a testator's disinheritance clause, the Court was faced with three questions: (1) whether NRS 132.370 abolishes the common law rule against enforcement of disinheritance clauses when the testator fails at affirmatively devising his or her estate; (2) whether to adopt the doctrine of dependent relative revocation ("DRR"); and (3) whether an escheat is triggered when a testator disinherits all of his or her heirs. Answering the first question in the affirmative, the Court held that the "plain and unambiguous" language of NRS 132.370, which provides that a will includes "a testamentary instrument that . . . merely excludes or limits the right of an individual or class to succeed to property," abolishes the common law rule against the unenforceability of disinheritance clauses where the testator otherwise fails to affirmatively devise his or her estate. Regarding the second question, the Court expressly adopted the doctrine of DRR, which states that a court should disregard a revocation made in connection with a failed dispositive objection or erroneous assumption of law or fact when necessary to ensure that an estate is distributed according to the testator's intent. The Court noted that the doctrine was "sound," and that NRS 133.130, which restricts revival of a will, was a fundamentally different concept than the doctrine of DRR and thus did not prevent adoption of the doctrine. However, the Court declined to apply the doctrine in this case because the testator did not make a failed dispositive objection or erroneous assumption of law or fact. Finally, in answering yes to the third question, the Court held that an escheat is triggered when a testator disinherits all of his or her heirs because the testator leaves behind "no surviving spouse or kindred" under the plain meaning of NRS 134.120. Thus, the testator's estate escheated to the state for educational purposes. Reversed. (Rory T. Kay, Associate in the Las Vegas office of McDonald Carano Wilson.)
In this appeal from an order denying enforcement of a testator's disinheritance clause, the Court was faced with three questions: (1) whether NRS 132.370 abolishes the common law rule against enforcement of disinheritance clauses when the testator fails at affirmatively devising his or her estate; (2) whether to adopt the doctrine of dependent relative revocation ("DRR"); and (3) whether an escheat is triggered when a testator disinherits all of his or her heirs. Answering the first question in the affirmative, the Court held that the "plain and unambiguous" language of NRS 132.370, which provides that a will includes "a testamentary instrument that . . . merely excludes or limits the right of an individual or class to succeed to property," abolishes the common law rule against the unenforceability of disinheritance clauses where the testator otherwise fails to affirmatively devise his or her estate. Regarding the second question, the Court expressly adopted the doctrine of DRR, which states that a court should disregard a revocation made in connection with a failed dispositive objection or erroneous assumption of law or fact when necessary to ensure that an estate is distributed according to the testator's intent. The Court noted that the doctrine was "sound," and that NRS 133.130, which restricts revival of a will, was a fundamentally different concept than the doctrine of DRR and thus did not prevent adoption of the doctrine. However, the Court declined to apply the doctrine in this case because the testator did not make a failed dispositive objection or erroneous assumption of law or fact. Finally, in answering yes to the third question, the Court held that an escheat is triggered when a testator disinherits all of his or her heirs because the testator leaves behind "no surviving spouse or kindred" under the plain meaning of NRS 134.120. Thus, the testator's estate escheated to the state for educational purposes. Reversed. (Rory T. Kay, Associate in the Las Vegas office of McDonald Carano Wilson.)
Thursday, January 26, 2012
Vaile v. Porsboll, 128 Nev. Adv. Op. 3 (January 26, 2012)
Before Justices Saitta, Hardesty, and Parraguirre. Opinion by Justice Hardesty.
Both parties appealed from a divorce decree; the Court consolidated the appeals and addressed a district court’s ability to enforce or modify a child custody order when neither the divorced parties nor the children live in Nevada. Having resolved the issues involving personal jurisdiction in an earlier appeal, the Court concluded that under the Uniform Interstate Family Support Act (“UIFSA”) a district court retains jurisdiction to enforce its order despite the parties having moved unless and until a court from the new state enters an order modifying the original order in accordance with the UISFA. Courts do not, however, retain jurisdiction to modify the order. Addressing whether the district court had modified the support order or simply clarified it to assist in enforcement, the Court held that a clarification would define the parties previously articulated rights, and a modification would change the rights granted under the previous order. In this case, the district court had modified the order and was without jurisdiction to do so. Reversed and remanded. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
Both parties appealed from a divorce decree; the Court consolidated the appeals and addressed a district court’s ability to enforce or modify a child custody order when neither the divorced parties nor the children live in Nevada. Having resolved the issues involving personal jurisdiction in an earlier appeal, the Court concluded that under the Uniform Interstate Family Support Act (“UIFSA”) a district court retains jurisdiction to enforce its order despite the parties having moved unless and until a court from the new state enters an order modifying the original order in accordance with the UISFA. Courts do not, however, retain jurisdiction to modify the order. Addressing whether the district court had modified the support order or simply clarified it to assist in enforcement, the Court held that a clarification would define the parties previously articulated rights, and a modification would change the rights granted under the previous order. In this case, the district court had modified the order and was without jurisdiction to do so. Reversed and remanded. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
In re Parental Rights as to S.M.M.D., 128 Nev. Adv. Op. 2 (January 26, 2012)
Before the Court en banc. Opinion by Justice Pickering.
In this appeal involving the Indian Children Welfare Act, the Court determined that the specific language of the Indian Child Welfare Act allowed the tribe and the state to agree to state court jurisdiction over a termination of parental rights for Indian children, despite the general rule that parties cannot agree to confer subject matter jurisdiction upon a court. The Court also rejected the appellant’s argument that the state court lacked jurisdiction because of failure to comply with notice formalities because the appellant had actual notice and participated in the hearing in which her parental rights were terminated. In addressing an issue of general applicability: the Court confirmed that a court always has jurisdiction to determine if it has jurisdiction. Affirmed. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
In this appeal involving the Indian Children Welfare Act, the Court determined that the specific language of the Indian Child Welfare Act allowed the tribe and the state to agree to state court jurisdiction over a termination of parental rights for Indian children, despite the general rule that parties cannot agree to confer subject matter jurisdiction upon a court. The Court also rejected the appellant’s argument that the state court lacked jurisdiction because of failure to comply with notice formalities because the appellant had actual notice and participated in the hearing in which her parental rights were terminated. In addressing an issue of general applicability: the Court confirmed that a court always has jurisdiction to determine if it has jurisdiction. Affirmed. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
Thursday, December 29, 2011
Fourth St. Place v. Travelers Indem. Co., 127 Nev. Adv. Op. 86 (December 29, 2011)
Before Justices Douglas, Hardesty, and Parraguirre. Opinion by Justice Douglas.
In this appeal from an order granting summary judgment in an insurance coverage action, the Court interpreted coverage limitations and exclusions in an “all risks” policy. Appellant, the owner of a building in Las Vegas, had roof repairs done to the building. Before the repairs were completed, Las Vegas had an unexpected and substantial rainstorm that caused significant damage to the building. Respondent denied coverage because the policy limited coverage for damage caused by rain to circumstances where the roof first sustained damage by wind or hail and excluded damage caused by faulty workmanship. The Court defined “roof” as “sufficiently durable to meet its intended purpose: to cover and protect a building against weather-related risks that reasonably may be anticipated,” and held that tarps that were used as temporary protection of the roof only after the rain began did not fit within that definition. The Court further concluded that “faulty workmanship” was not ambiguous and included both faulty products and processes. Having rejected both arguments that the potential causes of damage were covered by the policy, the Court nonetheless considered and adopted the doctrine of efficient proximate cause, which allows for recovery under an insurance policy if a covered cause of loss is the predominant cause of the loss even if a non-covered cause contributed to the loss. Because none of the asserted causes of the damage were covered under the policy, the Court affirmed the district court’s order granting summary judgment to the insurance company. Affirmed. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
In this appeal from an order granting summary judgment in an insurance coverage action, the Court interpreted coverage limitations and exclusions in an “all risks” policy. Appellant, the owner of a building in Las Vegas, had roof repairs done to the building. Before the repairs were completed, Las Vegas had an unexpected and substantial rainstorm that caused significant damage to the building. Respondent denied coverage because the policy limited coverage for damage caused by rain to circumstances where the roof first sustained damage by wind or hail and excluded damage caused by faulty workmanship. The Court defined “roof” as “sufficiently durable to meet its intended purpose: to cover and protect a building against weather-related risks that reasonably may be anticipated,” and held that tarps that were used as temporary protection of the roof only after the rain began did not fit within that definition. The Court further concluded that “faulty workmanship” was not ambiguous and included both faulty products and processes. Having rejected both arguments that the potential causes of damage were covered by the policy, the Court nonetheless considered and adopted the doctrine of efficient proximate cause, which allows for recovery under an insurance policy if a covered cause of loss is the predominant cause of the loss even if a non-covered cause contributed to the loss. Because none of the asserted causes of the damage were covered under the policy, the Court affirmed the district court’s order granting summary judgment to the insurance company. Affirmed. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
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