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

In Brooks v. State, the Nevada Supreme Court today reversed convictions for robbery with the use of a deadly weapon and conspiracy to commit robbery. The Court found that Brooks was entitled to have the jury instructed that, to find that an unarmed offender “used” a weapon for purposes of the sentence enhancement for use of a weapon, the unarmed offender had to have knowledge of the use of the deadly weapon by another principal.  

Additionally, Brooks was entitled to have the jury instructed that, absent an agreement to cooperate in achieving a criminal purpose, mere knowledge of, acquiescence in, or approval of that purpose does not establish conspiracy.

• Print
• Comments
• Trackbacks

Somehow, I neglected to point out that the Nevada Supreme Court had denied Judge Halverson's petition for writ of prohibition, in which she had requested the disciplinary proceedings against her be dismissed. 

See Order Denying Petition for Writ of Mandamus or Prohibition for the Court's decision.

Aside from allowing the proceedings against Halverson to continue, the Court's decision also holds that  the Commission had been misreading NRS 1.4663 and 1.4667.  The Commission understood those statutes to allow the filing of formal charges only when the investigation was completed.   The court held that charges could be supplemented if additional investigation yielded additional evidence.

• Print
• Comments
• Trackbacks

The Nevada Supreme Court issued four rulings today, all in civil matters:

Trust fund babies may find reason to rejoice in the Court’s decision in, In re Orpheus Trust although the heirs of those trust fund babies may be less pleased.  NRS 164.795 allows a special trustee to adjust amounts of trust income and principal distributed to a trust income beneficiary. The question the Court had to decide is whether the special trustee can may such adjustments with respect to principal and income accrued before the special trustee’s appointment.  The Court  concluded that, at a minimum, a special trustee may adjust between principal and income accrued in the year immediately preceding the special trustee’s appointment.  The Court reasoned that the adjustment power granted by the statute is corrective, and so long as “so long as the trustees are bound by the standards of the Uniform Prudent Investor Act, the terms of the trust require distribution of income to an income beneficiary, and a special trustee determines that an adjustment is necessary, the special trustee may adjust between principal and income accrued in the preceding year.”

The Orpheus Trust is a successor to John Paul Getty Family Trust. The plaintiff in the action was contingent beneficiary (one of four) who objected to an increased distribution to the current beneficiary – his own dad.  The trust had earned 14.77 % on its assets for the year, but dad’s distribution had been only 2.59 %. The adjustment gave him another 1.20%.  It’s probably more than it sounds.

• Print
• Comments
• Trackbacks

This case also provides a good lesson of something to check when your client has been sued – if the plaintiff is a business entity, has it filed it fictitious name certificate?

In Loomis v. Whitehead, a per curiam decision, the Nevada Supreme Court overturned the dismissal of a suit brought by individual members of a partnership that had failed to file an assumed or fictitious name certificate. 

NRS 602.070 bars suits by  persons who fail to file such certificates, where the suit arises from a contract made under the fictitious name.  However, the court held that the statute does not partners from bringing such an action, provided the contract was not made under the fictitious name. Here, the partners conducted a cattle business under the assumed name, but had contracted for care f the cattle without reference to the partnership name. When the cattle died of neglect, they sued the party charged with care of the cattle, who had not been misled into thinking he dealt with a partnership. Justice Hardesty dissented, arguing the statute unambiguously prohibited suits by uncertificated entities, where the suit arises from the business conducted under the fictitious name. 

Both sides make excellent points. From a purely statutory construction perspective, Hardesty’s view is easier to justify.  The suit undoubtedly arose from the partnership business, as the loss of the cattle was to that business.

However, as the saying goes, bad facts can lead to bad law.  Or, at least courts to stretch construction principles when the law as written would lead to an unjust result.  Who would want to allow a person who (allegedly) agrees to feed a herd of cattle, but instead, allows them to starve to death, to escape claims of negligence and breach of contract merely because the owner of the cattle didn’t file a fictitious name registration with county clerk? As the majority points out, the statute’s intent was to insure that people know with whom they deal. It was never intended to provide a technical escape route to evade the consequences of breach.

This decision was announced February 28, 2008.

• Print
• Comments
• Trackbacks

In Nevada Classified Sch. Emp. Ass'n v. Quaglia  the Nevada Supreme court held that a corporation’s bylaw is void to the extent that it is inconsistent with the corporation’s articles of incorporation; any amendment to the bylaws adopted using the procedures set forth in the invalid bylaw’s voting procedure is also invalid. 

This issue was a matter of first impression here, but this has long been the rule elsewhere.

These issues arose in the context of the Nevada Classified School Employees Association (NCSEA). The Articles of Incorporation of the NCSEA require the voting power of all members to be equal, but a bylaw placed a cap on the number of delegates a chapter could have.   The cap on the delegates resulted in the Washoe county chapter having a delegate to member ratio of 1 to 132, while other chapters had a ratio of 1 to 23. This disproportionate representation became critical when a resolution to require a supermajority of chapter member votes to allow the chapter to disassociate was approved despite the unanimous opposition of the Washoe County Chapter delegates. The Chapter voted to disassociate, but the approval was by simple, rather than super majority vote.

The NCSEA sought a preliminary injunction to prevent disassociation. The district court denied relief, noting that the supermajority requirement, adopted through the disproportionate representation, was “likely invalid.” The Supreme Court agreed, bringing Nevada’s corporate law up to date.

• Print
• Comments
• Trackbacks

In Hooks v. State, the Nevada Supreme Court reversed Hooks’ drug convictions and habitual offender adjudication, finding that he had not received an adequate advisement of the risks of self representation.  For more than thirty years, it has been the rule that a defendant must be “be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ Feretta v. California, 422 U.S. 806, 835 (1975). 

Here, while Hooks was advised by the Justice Court that self representation was foolish, and that he would not get special treatment or library access, the District Court did little more than inquire as to whether Hooks had discussed his decision with standby counsel. The District Court made no findings of a knowing, voluntary or intelligent waiver of the right to counsel, and the record as a whole did not establish such an informed waiver.

• Print
• Comments
• Trackbacks

Or at, least can’t have design defects covered by NRS Chapter 40.

 In Pankopf v. Peterson, the Nevada Supreme Court held that Chapter 40 provisions governing the litigation of design defects do not apply to blueprints for a residence never constructed. The Pankopfs had engaged the services of Peterson, an architect, who provided blueprints for a new residence. The construction was never finished.  In a suit claiming breach of oral contract, negligence and incompetence, and professional negligence,  the Pankopfs alleged that deficiencies in the blueprints prevented the completion of construction.  

The district court dismissed for failure to comply with Chapter 40 requirements.  The Court reversed, holding “[g]iven that the residence in this case has not been completed, it cannot constitute a “new residence” for the purposes of NRS Chapter 40.”

• Print
• Comments
• Trackbacks

InCote H. v. Dist. Ct., the Nevada Supreme Court held that NRS 201.230(1), which defines the offense of lewdness with a minor under the age of 14, can be used to adjudicate as delinquent a minor who is also under the age of 14. The court rejected the claim that the statute cannot be so used because minors under the age of 14 are members of the class protected by the statute.  Here, where Cote is apparently a minor between the ages of 8 and 14, he can be adjudicated delinquent for fondling a 4-year-old child, provided that there is clear proof that he knew the wrongfulness of the act when he committed it, as required by NRS 194.010.

• Print
• Comments
• Trackbacks

In Dancer v. Golden Coin, Ltd. the Nevada Supreme Court held that the Nevada Wage and Hour Law (NWHL) is not preempted by Federal Fair Labor Standards Act (FLSA), as the latter specifically states that higher state minimum wage laws will prevail over the FLSA requirements.  The Court further found that the district court erred in denying a motion to substitute the class representative because, having erroneously determined the federal law applied, it applied the federal statute of limitations as well as the federal class action procedural rule requiring class members to opt in. However, NRCP 23 uses an opt out method for class determination. Accordingly, the claims of proposed new class representative were not time barred.

• Print
• Comments
• Trackbacks

The Court issued one published opinion on January 17, 2008.

In Lioce v. Cohen, a case that included four consolidated appeals, the Nevada Supreme Court reheard the matter en banc. Having done so, the Court vacated the 0rio opinion, published as Lioce v. Cohen, 122 Nev. ___, 149 P.3d 916 (2006),and issued a new opinion.  The Court reached substantially the same conclusion as the prior opinion, save that it declined to impose monetary sanctions on defense counsel and his clients.

• Print
• Comments
• Trackbacks

On January 17, 2008, the Nevada Supreme Court ordered the Nevada Commission on Judicial Discipline to answer the Petition for Writ of Prohibition filed by Judge Elizabeth Halverson within 30 days. The Court noted that the Commission had actually filed its formal charges against Judge Halverson within a few days of the Petition.

Click here for the Court’s Order.

Click here for Judge Halverson’s Emergency Petition for Writ of Prohibition or Mandamus.

• Print
• Comments
• Trackbacks

For those interested, here are the links to the Supreme Court's postings in the Kucinich matter:

Emergency Petition for Writ of Prohibition 

Kucinich's Opposition to Emergency Petition 

Order Granting Petition for Writs of Prohibtion and Mandamus 

Order Scheduling Oral Argument 

• Print
• Comments
• Trackbacks