November 1, 2007 Nevada Supreme Court Opinions
On November 1, 2007, the Nevada Supreme Court issued three published decisions. A discussion of Matter of Halverson is in the previous post. In Boulder Oaks Cmty. Ass'n v. B & J Andrews,the Nevada Supreme Court upheld the grant of a preliminary injunction preventing members of an association from bypassing the declarant when renting out their property. The declarations required the homeowners to use the declarant as its rental agency, and to pay 40% of the rent to the declarant. an Association from held that declarations defining the declarant may prevail, even if such definition is inconsistent with NRS 116.035, as NRS 116.003 allows such definition to differ. Here, the defined term allowed for successors of the original declarant. Because B & J Andrews was a declarant and owned land in the community, any change tot eh declarations required its permission, as provided in the declarations. Accordingly,t he Associations attempt to amend the declarations had no effect. Therefore, Andrews had to approve any CC&R amendment removing the rental provision. Because the Association failed to obtain Andrews’ consent to this material change in the CC&Rs, Andrews sufficiently established a reasonable likelihood of success on the merits and the district court properly granted a preliminary injunction against the Association. Accordingly, we affirm the district court’s order. In Dewey v. State, the Nevada Supreme Court held that the assertion of the Fifth Amendment right to remain silent under Miranda v. Arizona, by itself, is not sufficient to also invoke the right to counsel. The right to counsel is invoked only when the a suspect’s assertion of the right to remain silent includes a clear, unequivocal, and unambiguous request for an attorney. The Court also held that police may resume questioning a suspect who has invoked her right to remain silent provided they have “scrupulously honored” the suspect’s prior exercise of her right to remain silent, and issue a new set of Miranda warnings prior to reinitiating further interrogation. Here, there was no clear, unequivocal, and unambiguous invocation of her right to counsel when Dewey initially declined to speak with the police. Dewey’s conviction for second degree murder was affirmed.
