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

In Fernandez v. Fernandez, the Nevada Supreme Court held that a stipulation between the parties that a child support order will not be modified cannot supersede statutory provisions allowing modification, up or down, upon a material change in circumstances.  

The Court stated “The formula and guideline statutes are not designed to produce the highest award possible but rather a child support order that is adequate to the child’s needs, fair to both parents, and set at levels that can be met without impoverishing the obligor parent or requiring that enforcement machinery be deployed.” Absent legislative approval of parents’ ability to waive the right to modify on the basis of changed circumstances, the parties cannot stipulate around those statutory provisions.

3-0 decision authored by Pickering, with Parraguirre and Douglas concurring.

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Successive dispositive motions weren’t exactly the issue in Dictor v. Creative Management Services, but the Court did cite the two week old 9^th Circuit decision in Hoffman v. Tonnemacher, [discussed here] with approval.  Therefore, it looks like the Court will follow the federal court lead on this issue.

In Dictor, the Nevada Supreme Court clarified the law of the case doctrine and choice of law decisions. 

In this case, involving an insurance subrogation claim, the Court had previously determined in an unpublished decision that because the neither the insured nor the claimant were Nevada residents, NRS 687A.095, which bars suit against an insured of an insolvent insurer, did not apply. 

On remand, the District court determined that a similar Missouri statute barred the suit, and granted summary judgment again.

Dictor appealed again, claiming that the Missouri law should not have applied, because the Supreme Court had decided that statutory defenses did not apply. It seems an amicus brief filed days before the oral argument in the first appeal had raised the Missouri statute. However, the Court had not considered or ruled on the applicability of that statute.  

The Court stated the rule of the case doctrine bars reconsideration only of issues actually decided by the appellate court, and does not apply if the issue  presented in a subsequent appeal differ from those previously presented.   Application of the Missouri statute had not been addressed in the previous appeal, and the Court’s remand order had not prevent consideration of other statutory defenses.

The Court also addressed choice of law considerations for subrogation, adopting the comment d to Restatement of Conflicts, § 145, which states “the local law of the state where the parties are domiciled, rather than the local law of the state of conduct and injury, may be applied to determine whether one party is immune from tort liability to the other.”  This is consistent with the Court’s previous adoption of the Restatement analysis for choice of law decisions in General Motors Corp. v. District Court, 122 Nev. 466, 134 P.3d 111 (2006), and emphasizes that whichever Restatement section is most specific to the facts should apply.

3-0 decision authored by Hardesty, with Parraguirre and Pickering concurring.

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The Court’s first published opinion of 2010, Higgs v. State,  was initially released in May 2009, as an unpublished order. The Court rejected Higgs’ various challenges to his conviction for the murder of his wife, Kathy Augustine, including the argument that a failure to grant a continuance to allow a defense expert a longer opportunity to review the prosecution’s

The opinion  was noteworthy for its extensive discussion of the different standards for admission of expert testimony presented by NRS 50.572  and the near identically worded FRE 702. Amicus curiae Nevada Justice Association moved for the publication of the ruling, which the Court granted.

Although in federal courts, the admission of expert testimony is governed by the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), in Nevada, the test of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) continues to be the appropriate standard. The Court noted that to the extent Daubert presents a flexible approach, it may be considered persuasive, but a mechanistic application of the factors cited in Daubert is not appropriate in Nevada courts.

Under Frye, expert opinion based on a scientific technique is inadmissible unless the technique has “gained general acceptance in the particular field in which it belongs.” Under Daubert, admissibility is based upon the testimony’s “relevance and reliability.”  The difficulty of Daubert, however, is the tendency to apply the factors listed therein in a mechanical way, even those such factors were expressly not intended to be a definitive checklist, and would not even logically apply to situations outside scientific fields. In Higgs, the Court clarifies that admissibility standards for expert testimony in Nevada courts are not limited to the factors set forth in Daubert.

Hardesty drafted the 4-2 opinion, issued January 14, 2010.  Pickering recused.  Cherry and Saitta each filed separate dissents, with Cherry’s more strongly worded. 

The dissents, however, were  not directed at the Frye/Daubert debate, but instead, were directed at the Court’s conclusion that Higgs’s rights had not been violated by the denial of the continuance.  Both Cherry and Saitta expressly concurred with the Court’s reaffirmance of Frye as the appropriate evidentiary standard.

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In Landreth v. Malik,  the Nevada Supreme Court held that the family courts do not have jurisdiction to hear disputes over property ownership between unmarried couples. Here, the dispute involved a claim that the funds used to purchase and renovate a home in Nevada were joint funds of a couple who had cohabited, but never married. The Court’s ruling was based on the jurisdictional grant set forth in NRS 3.223, which does not include an action of the type here.

The statute is pretty straight forward.    I do question the use of the word “meretricious” to describe the relationship between the parties, however. That word is commonly used to describe an unlawful sexual relationship.   Meanings do change though, so perhaps this is an example.

Also, the impact of this decision on those who register as domestic partners,  remains to be seen. SB 283 expressly provided that termination of such a domestic partner relationship would follow the requirements of NRS Chapter 125, which would fall within family court jurisdiction. However, domestic partners can terminate outside of Chapter 125 if the parties meet certain qualifications. One such requirement is the lack of community property, the determination of which lack could, of course, be precisely the issue to be decided . . .

Decided December 24, 2009. Douglas authored the opinion, with Parraguirre, Cherry, and Pickering concurring.

Hardesty dissented, with Saitta and Gibbons concurring.

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In In re the Parental Rights as to N.J., the  Nevada Supreme Court held that a dual-standard burden of proof is appropriate for evidentiary findings in parental termination cases involving the Indian Child Welfare Act (ICWA), with the higher beyond-a-reasonable-doubt evidentiary standards of the ICWA used for ICWA-related findings, and Nevada’s clear-and-convincing evidence standard for state law findings. The Court also held that under specific circumstances, such as when the breakup of a Native American family is not at issue, application of the Existing Indian Family (EIF) doctrine, a judicially created exception to the ICWA, may be appropriate.

Decided December 24, 2009, 7-0 decision, authored by Saitta.

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In Sanchez v. Wal-Mart Stores, the Nevada Supreme Court upheld the dismissal of the suit against pharmacists by persons injured by a pharmacy customer driving while under the influence of drugs dispensed through multiple prescriptions.

The Court held that pharmacists do not owe of duty to unidentifiable third parties. Because such third parties are not included in the group intended to be protected by pharmacy statutes and regulations, such third parties cannot not raise a negligence per se claim either.

Decided December 24, 2009. 5-2 decision. Opinion by Hardesty; Parraguire, Douglas, Gibbons, and Pickering concurring.

Cherry dissented, with Saitta concurring in the dissent. They would recognize a special relationship  between a pharmacy and customer, based on the pharmacist’s professional standard of care, which includes an obligation to ensure that medications are dispensed only for medically necessary purposes.

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In Stephens Media v. Dist. Ct., the Court determined that the press may intervene in a limited fashion in criminal cases to assert first amendment rights. The Court also determined that juror questionnaires used in jury selection are presumptively subject to public disclosure. The case involved jury questionnaires from the O.J. Simpson case.  

Decided December 24, 2009. Hardesty authored the opinion, which was 6-0. Pickering recused.

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In Quanbengboune v. State, issued December 3, 2009, the Nevada Supreme Court adopted  procedures for a defendant to make a claim that a court-appointed translator’s inaccurate translation affected the defendant’s due process rights.  

If a motion for new trial is made, the parties should each have translators review the translated testimony for discrepancies. The District Court should appoint an independent translator to review the translations.  In reviewing the translations, the court should consider whether the alleged inaccuracies or omission altered the context of the testimony, and if so, whether that alteration prejudiced the defendant. 

If the inaccuracies are discovered during a pending appeal, a motion to correct the record should be made. The parties should again obtain translations, but if possible, stipulate as to which is most accurate. If the parties are unable to so stipulate, then the court should appoint an independent translator to review the translations.   Copies of both translations should be preserved for appeal.

In this case, the Supreme Court determined that while the defendant’s testimony had been altered in some instances, he was not prejudiced by these alterations.

The new procedures are similar to those adopted in Baltazar-Monterrosa v. State, 122 Nev. 606, 616-17, 137 P.3d 1137, 1144 (2006), which addressed inaccuracies in translations of the defendant's statements to police.

The Court also determined that the District Court’s error in failure to instruct the jury as to afterthought robbery did not rise to the level of plain error.

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In John v. Douglas County School District, issued November 25, 2009, the Nevada Supreme Court held that Nevada’s anti-SLAPP statute, NRS 41.637,  applies to federal causes of action because it is a neutral and procedural statute that does not undermine any federal interest.

        Anti-SLAPP (Strategic Lawsuits Against Public Participation) statutes protect against meritless lawsuits that are filed “primarily to chill the defendant’s exercise of First Amendment rights.” Such suits generally involve actions brought against persons who have engaged in good faith communications in furtherance of the right to petition the government.  Nevada’s anti-SLAPP statute allows the defendant in such an action to bring a special motion to dismiss showing that statements made were truthful or made without knowledge of falsehood, or regard a matter of concern to the government entity.  

       Here, the underlying action as brought against the school district and certain employees following the discipline of John, a former employee of the school district. John had alleged that his discipline for unprofessional conduct and sexual harassment and the statements made by the defendant employees in the disciplinary procedures, were motivated by religious and disability discrimination.  The defendants brought forth evidence that the communications involved in the discipline were brought in good faith, and John was unable to rebut that evidence.

En banc, 7-0 decision, opinion by Gibbons. 

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If you are filing any sort of medical malpractice claim, do not forget to include that expert affidavit.  You need it, unless res ipsa applies.

In Fierle v. Perez, announced November 19, 2009, the Nevada Supreme Court held that, pursuant to NRS 41A.071, where a complaint has claims for medical malpractice against professional medical corporations and claims of professional negligence against medical providers, the failure to include an expert affidavit attesting to such malpractice or negligence renders that complaint void ab initio as to such claims.  However, if any claim in the complaint falls with the res ipsa loquitur exception in NRS 41A.071, no affidavit is required as to such claim, and that claim survives. Attaching an affidavit to an amended complaint cannot cure the defect in the void claims, even where some claims in the same complaint survived.  

En banc, opinion by Cherry. 

Pickering, dissenting in part, took issue with the application of the affidavit requirement to all claims of professional negligence by medical providers, and also with the majority's conclusion that the claim against a technician who performed the procedure resulting in the injury fell within the res ipsa exception, while claims regarding the negligent supervision and training of that technician did not.

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In Ogawa v. Ogawa, announced Nov. 12, 2009, the Nevada Supreme Court decided two issues related to child custody and one issue related to entered a default divorce decree. The case involved children taken to Japan for what the mother testified was to be a three month vacation. However, at the conclusion of the three months, the father did not return the children. The District Court determined that Nevada was the children’s home state under the UCCJA, and ordered their return. The Court also ordered the entry of a default divorce decree

The Court determined that where evidence supports a finding that minors lived in the state with a parent who still resides here within six months before the commencement of the custody proceeding, without regard to temporary absences, then exercise of jurisdiction as the minor’s home state is appropriate. The Court also found that while the from the state was intended to be temporary, such temporary absence does not interfere with the six month residency.

The Court also upheld an order for the children to be returned to the jurisdiction. Although the District Court’s reliance on the Hague Convention was inapplicable, as Japan has not signed that convention, the UCCJA analysis is  applicable.

However, the Supreme Court did take exception to the default decree entered here, as the other parent had filed an answer and appeared through counsel.

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If you are thinking of applying for any judicial vacancies, take note of election printing deadlines. Otherwise, you could end up with an appointment that ends after a few months, with no way to get on the ballot for election.

In Lueck v. Teuton, announced Nov. 12, 2009, the Nevada Supreme Court found that a judicial appointment ends after the generally election most immediately following an appointment. The Court first ruled that Lueck, who had raised the issue as a private citizen when a judge was appointed to a term that extended past the next general election date due to the passage of the deadline for ballot inclusion, lacked standing to bring a Petition for writ of quo warranto to remove the judge from office. The Legislature has not given such standing to private citizens.   However, the Court exercised its supervisory powers to rule on the issue of the vacancy. Noting that until Nev. Const. art. 6, § 20(1) and (2) provide for the appoint to last until “the first Monday of January following the next general election,” the court determined that “next general election” meant the very next one, regardless of ballot printing deadlines

Opinion by Cherry. Gibbons concurred as to the finding of a lack of standing, but dissented, concluding that an appointment should end only when the vacancy could be filled with a valid election. 

‘lueck v. teuton’ ‘judicial appointment’

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In Glover v. Dist. Ct., announced Nov. 12, 2009, the Nevada Supreme Court denied a petition for writ of prohibition seeking to bar on the grounds of double jeopardy the retrial of Glover for murder. The Nevada Supreme Court ruled that a negative inference arising from the prosecution’s failure to present a hearsay statement by the accused (the accused’s statement to the police) was not properly presented to the jury. Because defense counsel repeatedly referred to the excluded evidence, and to the prosecution’s refusal to present it, the district court determined that a mistrial was a manifest necessity. Granting deference to that determination, and considering the defendant’s role in requiring it, there will was no violation of double jeopardy in retrying Glover. Opinion by Pickering.

Hardesty & Saitta dissented in part, concluding that the district court failed to make the findings necessary to support its determination that mistrial was a manifest necessity, and that a curing instruction would have been sufficient.   

Cherry dissented, concluding that that the negative inference from the prosecution’s failure to produce evidence peculiarly in its power to present would arise.

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In Citizens for Cold Springs v. City of Reno, the Nevada Supreme Court held that citizens have standing to challenge a land annexation, even if they do not own the land subject to annexation. NRS 268.668 grants standing to seek judicial review to any person claiming to be adversely affected by an annexation.  

The Court noted, however, that while a mere claim to an adverse affect will satisfy the requirements of standing, the claimant must  prove it has or reasonably will suffer an actual adverse effect to successfully challenge the annexation decision. 

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Today in Wyman v. State, the Nevada Supreme Court reversed the conviction of a mother who had been convicted in 2007 for the murder of her toddler in 1974. The reversal was based upon the District Court’s refusal to allow the defendant to subpoena out of state evidence of the psychological records of the only witness to the alleged crime, who was the defendant’s daughter and victim’s sister.  The witness’ accusations emerged in the midst of psychological treatment for depression, after several suicide attempts.

Interpreting Nevada’s Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Proceedings, NRS 174.395, et seq.,  the Court held that the Act’s provisions apply to subpoenas duces tecum.  The Court further found that the requirement that the witness be material for the Act to apply means that the evidence has a logical connection with facts of consequence to the issues.  Applying this test, where the witness accusations had been intertwined with her “mental health issues and treatment to such an extent that her mental health became logically connected with her accusations.” The defendant was prejudiced by the District Court’s failure to allow the records to obtained by the defense.

The Court rejected a challenge to the complaint based on pre-indictment delay. The Court found the  defendant had not shown prejudice, as both the prosecution and defense were equally prejudiced by the delay, and had failed to show that the delay had been deliberate to gain a tactical advantage over the defense.

Opinion authored by Hardesty, 7-0.

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In the Webb v. Clark County School District, the  Nevada Supreme Court held that damages based upon treatment services for which licensing is required, but provided by individuals without such a license, are not recoverable in a tort action.  The Court also held that the Paul D. Coverdell Teacher Protection Act, 20 U.S.C. §6731, which immunizes school professionals from liability for reasonable actions taken to maintain order and discipline,  must be pleaded as an affirmative defense. Failure to affirmatively plead the defense results in a waiver.

Webb involved claims for a damages sustained by a student who alleged a teacher used excessive force in stopping a pushing incident at a school. The student had received psychological services from person licensed as an alcohol and substance abuse counselor, but not as a psychologist. Damages based on such treatment, including future damages based on the counselor’s recommendations, were not recoverable.  

Opinion by Hardesty, 7-0. 

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