Nevada Appellate Lawyer & Attorney : Tami D. Cowden : Nevada Supreme Court, Ninth Circuit Court of Appeals

In D.R. Horton v. Dist. Ct., the Nevada Supreme Court heldthat a Chapter 40 notice based upon extrapolated evidence satisfies the notice requirements, provided there is a reasonable statistical basis to describe the alleged defects and their locations in reasonable detail sufficient to afford contractors a meaningful opportunity to repair the alleged defects. The Court held that a valid statistical sample require limited variables; accordingly, homes included within tested must be similar; i.e., the same floor plan, or at times, event he same floor plan with a particular elevation. An extrapolated notice will be valid only if it identifies the subset or characteristics of the subset to which it applies.  The Court also held that Chapter 40 notices are presumed valid; a contract who challenges it validity must do so with specificity.

In Butler v. Bayer, the Nevada Supreme Court prison officials have a duty to exercise reasonable care to prevent intentional harm or to avoid an unreasonable risk of harm, to prisoners,  when such harm is foreseeable.  Harm is foreseeable when prison officials actually know that an inmate is at risk, that the attacking inmate is dangerous, or when prison officials otherwise have reason to anticipate the attack.  Th4e Court also held that prison officials have a duty to exercise reasonable care to avoid foreseeable harm in releasing a disabled inmate, but are not required to consider social, economic, or political policy, so that prison officials are not entitled to governmental immunity if they are negligent in making the decision to release a disabled prisoner.

In Martinez v. Maruszczak, the Nevada Supreme Court adopted the two-part federal test, for determining when the discretionary-function exception to the general waiver of governmental immunity applies.  Under this two-part test, state-employees enjoy immunity only when their allegedly negligent acts involve elements of judgment or choice, and the judgment or choice made is of the kind that the discretionary-function exception was designed to shield, that is, a judgment or choice involving social, economic, or political policy considerations.    The Court also rejected a challenge to the statutory cap on damages for negligence by a state employee.

In Ryan v. Dist. Ct., the Nevada Supreme Court held that a district court must honor a criminal defendant’s voluntary, knowing, and intelligent waiver of conflict-free representation so long as the conflicted representation will not interfere with the administration of justice. For a waiver of conflict-free representation to be effective, the defendant must also specifically waive the right to a mistrial as a result of her attorney’s potential or actual conflict of interest depriving her of her right to effective assistance of counsel arising from the dual representation. Before engaging in dual representation, the attorney must advise the criminal defendant of her right to consult with independent counsel to review the potential conflicts of interest posed by the dual representation.  If the defendant chooses not to seek independent counsel, then the defendant must expressly waive her right to do so before the defendant’s waiver of conflict-free representation can be valid.

In Arnold v. Kip, the Nevada Supreme Court held a defendant need not demonstrate prejudice in a motion to dismiss an action under NRCP 16.1(e)(2) for the plaintiffs’ failure to timely file a case conference report. Nor need the district court determine whether the defendant has suffered prejudice, or apply a heightened standard of review or to assess the factors discussed in Young v. Johnny Ribeiro Building, 106 Nev. 88, 92, 787 P.2d 777, 779 (1990),  for dismissal with prejudice as a discovery sanction, since a dismissal under NRCP 16.1(e)(2) is without prejudice.   The Court also clarified that if a reconsideration order and motion are properly part of the record on appeal from the final judgment, and if the district court elected to entertain the motion on its merits, then we may consider the arguments asserted in the reconsideration motion in deciding an appeal from the final judgment.[

 In Leven v. Frey, the Nevada Supreme Court held that NRS 17.214 requires judgment creditors to  timely filing of an affidavit, timely record the affidavit (if the judgment to be renewed was recorded), and timely serve the affidavit to successfully renew a judgment and that these requirements must be complied with strictly. 

 In Clark Cty. Sch. Dist. v. Richardson Constr., the Nevada Supreme Court held that the statutory cap on damages to be awarded against a governmental agency is not an affirmative defense that must be affirmatively pleaded.  The Court also adopted a standard by which to determine whether a defense is an affirmative defense which must be affirmatively pleaded: a defense if affirmative if, were it proven, the defendant would prevail even if all allegations in the complaint were true.