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

Today the Nevada Supreme Court issued opinions relating to tax assessment, sovereign immunity, NRS Chapter 40 (construction defect litigation) and the constitutionality of a rule relating to ballot initiatives.

In Canyon Villas v. State, Tax Comm'n, the Nevada Supreme Court held that, for tax assessment purposes, it is appropriate to use the income capitalization method to assess the full cash value of income-generating property that contains constructional defects in its improvements.

In Ransdell v. Clark County, the Nevada Supreme Court held that a county’s actions in abating a nuisance satisfy the two part test to determine whether acts are discretionary, entitling the County to sovereign immunity on Ransdell’s claims. The claims arose after the county removed “vehicle parts, tires, engines, vehicle body parts, dismantled bicycles, bicycle parts, scrap metals, a dilapidated shed, wood pallets, tarps, discarded chairs, rusted metal fencing, rusted grates, numerous inoperative motor bikes and parts, garbage, rubbish, weeds, and debris” from the property.  The Court held that the county’s actions involved individual judgment and deliberation, and were based upon social and public policy considerations.   The Court also rejected assorted constitutional challenges to the action, based upon the alleged vagueness of the term “inoperable vehicles.”

In ANSE, Inc. v. Dist. Ct., the Court held that subsequent purchasers of homes are entitled to the protections of NR Chapter 40. The decision clarifies the holding in Westpark Owners’ Ass’n v. District Court, 123 Nev. ___, ___, 167 P.3d 421, 429 (2007), which had held that  “new residence” for constructional defect purposes is  “a product of original construction that has been unoccupied as a dwelling from the completion of its construction until the point of sale.” In Westpark, the properties at issues were condominiums that had been rented out as apartments prior to their sale to individual homeowners.  In ANSE, the Court clarified that the “sale” in question refers to the first.

In We the People Nevada v. Secretary of State,  the Court held that the requirement in NRS 295.056(3), which requires that an initiative petition proposing to amend the Nevada Constitution be submitted “not later than the third Tuesday in May of an even-numbered year” is unconstitutional.  Article 19, §§ 2(4) and 3(2)  of the Nevada constitution do not permit the deadline to be more 155 days from the general election.

• Email This
• Print
• Comments
• Trackbacks

The Nevada Supreme Court slapped down the latest attempt to put a property tax cap constitutional change on the ballet, refusing to stay a district court order presenting the ballot initiative. See Order here. The District Court’s order was based upon the near total disregard of statutory requirements for certification of signatures by those paid to gather the signatures for the ballot initiative. 

The follow gem from this order could  well qualify as the judicial understatement. of the year:

Appellant argues that the affidavit requirement is unconstitutional.  As we upheld the statute against a constitutional challenge only a few weeks ago, it does not appear that appellant is likely to succeed on the merits of this constitutional argument.  

We the People v. NSEA, Order Denying Disqualification and Denying Motion For Stay, p 4.

Hmm –I guess I should disclose that my husband is a member of the NSEA. But I am glad someone is making sure these statutory requirements are followed. These "tax reform" measures are ruinous for states - we need only look at California and Colorado, for examples.

• Email This
• Print
• Comments
• Trackbacks

On December 27, 2007, the Nevada Supreme Court issued six published opinions:

ASAP Storage, Inc. v. City of Sparks

In a case arising after a flood, during which city authorities prevented property owners from returning to their property, and thereby preventing them from saving property from the flood damage, the Nevada Supreme Court held that there was no taking of personal property, as the property was not taken for public use. Accordingly, summary judgment disposing of   takings claims was affirmed. The Court also held NRS 414.110 grants immunity for acts related to preparing for emergencies, overruling prior holdings in Nylund and Vermef .  However, the Court reversed the summary judgment granted to the City for claims arising from pre-emergency acts. The Court ordered the district court consider on remand whether the City is immune from suit under NRS 41.032(2) for any alleged pre-emergency gross negligence or willful misconduct by its employees, for which the City could be vicariously liable under NRS 414.110(1), and whether the City is immune from suit under NRS 41.032(2) for any alleged gross negligence, willful misconduct, or bad faith by its employees in responding to the emergency.  The Court also reversed the summary judgment to the city on ASAP Stoarge, Inc Finally, we reverse the district court’s order granting summary judgment to the City on ASAP Storage’s breach-of-contract claim. If, on remand, the district court is inclined to grant summary judgment on this claim, then it shall comply with the requirements of NRCP 56(c).

• Email This
• Print
• Comments
• Trackbacks

In Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., the Court provides guidance to the district courts when determining an award of fees under 18 U.S.C. § 1988. Citing Hughes v. Rowe, 449 U.S. 5, 14 (1980)., the court held such fees may be awarded to a prevailing defendant only where the claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so. Here, maintenance of a $1983 action against the state and state agencies, who are not persons for purposes of §1983, satisfied the standard. The also approved the “lodestar" method of determining the appropriate amount of fees.

In this case, the Court affirmed the grant of summary judgment, noting that the appellant had failed to provide a copy of its opposition to the motion for summary judgment in the record on appeal, requiring the court to assume the district court acted properly; the same was true with respect to the motion for fees. Thus, the case is also a  reminder to provide an adequate record to allow the Court to review.

• Email This
• Print
• Comments
• Trackbacks

On November 21, 2007, the Nevada Supreme Court issued three published opinions:

In Wilson v. State, the Court held that Nevada’s constitutional protections against double jeopardy exceed those offered by the federal constitution. Here, Wilson’s original conviction was for four counts of using a minor in the production of pornography and four counts of possession of a visual presentation depicting sexual conduct of a person under 16 years of age. was sentenced to 4 terms of 24 to 72 months on the possession charges to run concurrently with 4 consecutive terms of 10 years to life on the production charges.  However, on the original appeal, the Nevada Supreme Court reversed three of the four production convictions all of the convictions arose out of a single criminal act. Upon remand for resentencing, the district court increased Wilson’s minimum sentence for each possession conviction from 24 months to the statutory maximum, 28 months, also ruled that the possession sentences should run consecutively—instead of concurrently, as specified in the original sentencing hearing—with his sentence on the one remaining production count.  In reversing, the Court reiterated its previous rule: “When a court is forced to vacate an unlawful sentence on one count, the court may not increase a lawful sentence on a separate count.”

• Email This
• Print
• Comments
• Trackbacks

• Email This
• Print
• Comments
• Trackbacks

Following an emergency hearing late Monday, the Nevada Supreme Court has issued a stay of all warrants of execution pending the review of the constitutionality of lethal injection as the means of carrying out the death penalty. The stay immediately affects convicted killer William Castillo, who was scheduled to die by lethal injection at 8:30 p.m. on Monday, Oct. 15, 2007. The decision notes that the only pending warrant of execution was that of Mr. Castillo.

As someone who would prefer not to live in a state that deliberately kills its citizens, I must say that I am glad for even the temporary stay.  I'm not sure this sort of thing isn't more cruel, however, given that Mr. Castillo was prepared to die, and had not himself sought the stay. 

• Email This
• Print
• Comments
• Trackbacks

On Thursday, October 11, 2007, the Nevada Supreme Court issued seven published decisions.  The decision include the adoption of new tests to determine the validity of Chapter 40 notices, whether a defense is affirmative, and whether governmental immunity applies to a particular act by a state employee.

• Email This
• Print
• Comments
• Trackbacks

• Email This
• Print
• Comments
• Trackbacks (1)

On Thursday, September 20, 2007, the Nevada Supreme Court issued six published opinions:

In Nanopierce Tech. v. Depository Trust, the Nevada Supreme Court held that Congress did not make “clear and manifest” any intent to occupy the legislative field of clearing and settling securities transactions. However, the Court, found that the appellants claims, based on allegations that respondents concealed flaws in a Commission-approved national system for clearing and settling securities transactions, frustrates Congress’s objectives with respect to the clearing and settling regulatory scheme and renders adherence to both that regulatory scheme and state law impossible. Accordingly the claims are preempted. Justices Hardesty and Douglas concurred in part, but dissented, arguing that there was no preemption as to certain misrepresentation claims regarding compliance with buying broker’s notification.

In Westpark Owners' Ass'n v. Dist. Ct.,  the Nevada Supreme Court adopted a definition of ‘new residence” for purposes of Chapter 40, under which a “residence is “new” when it is a product of original construction that has been unoccupied as a dwelling from the completion of its construction until the point of sale.” Here, 108 condominium units had been leased as apartments for 7 years prior  to their sale as condominiums, and accordingly, did not qualify as “new residences.”  Accordingly, Chapter 40 claims relating to the construction of the residences may not proceed. However to the extent the claims relate to defects resulting from alterations or repairs made by Westpark prior to sale, the claims may proceed.

In Clark County Dist. Att'y v. Dist. Ct., the Nevada Supreme Court clarified that NRS 432B.550 creates only a preference for family placement of foster children, not a presumption, and that placement must always be guided by the interests of the child.  Here, because the district court treated the statute as creating a presumption, the matter was remanded for reconsideration based upon bet interests of the child.

In Nay v. State , the Nevada Supreme Court held that a defendant may not be found guilty of first-degree felony murder if the intent to commit the predicate enumerated felony arises after the conduct resulting in death.  Thus, “robbery does not support felony murder where the evidence shows that the accused kills a person and only later forms the intent to rob that person.”  Here, the defendant beat his roommate to death, and thereafter, took the roommate’s property. He claimed he acted in self-defense, and decided only after the death to take the property.  The failure to properly instruct the jury required reversal of the first degree murder conviction, but was harmless as to the robbery conviction.

In Caballero v. Dist. Ct., the Nevada Supreme Court held that where an indigent litigant requires an interpreter to understand the proceedings,  a justice court has both express and inherent power allow a volunteer interpreter, and when a volunteer interpreter is not available, to appoint a state-registered interpreter and to determine any compensation. 

In  Witherow v. State, Bd. Of Parole Comm’rs, the Nevada Supreme Court held that parole hearings are quasi-judicial, and therefore, not subject to open meeting law requirements.

• Email This
• Print
• Comments
• Trackbacks

• Email This
• Print
• Comments
• Trackbacks

• Email This
• Print
• Comments
• Trackbacks

The Nevada Supreme Court issued three published opinions today, August 2, 2007

In State v. Ruscetta, the Court clarified that the proper test in cases involving consensual vehicular searches is one that examines the totality of the circumstances for objective reasonableness . The court “retreats” from its decision in State v. Johnson, 116 Nev. 78, 993 P.2d 44 (2000), to the extent that opinion held that dismantling a car during a search is per se unreasonable. The matter here was remanded for an evidentiary hearing to determine whether the officer’s movement of an unsecured (i.e., already dismantled) center console was objectively unreasonable in a consent search of a vehicle.

In Gallegos v. State, the court held that NRS 202.360(1)(b) is unconstitutionally vague and fails to prevent arbitrary and discriminatory enforcement. The ruling reverse the conviction for one count of possession of a firearm.   The statute is vague as it criminalizes possession of a firearm by a “fugitive from justice” but does not define that term.   The court stated “We cannot determine from the statute’s provisions whether the person has to have been formally charged with a crime, be wanted as a suspect but not yet indicted, be guilty of a crime but not yet discovered, be wanted for general questioning relating to a crime, or whether the person even has to know he has committed a crime.”

In Marcuse v. Del Webb Communities, the Court held that unnamed class members have standing to object to a settlement in the class action, and have standing to appeal court approval of the settlement. Such standing is conferred because the class members are parties to the action’ moreover, where there is no opportunity to opt out, any settlement would resolve the rights of the unnamed class members.  Here, the district court properly approved of the settlement in the action. However, the Court reversed the District Court’s dismissal of a subsequent action filed by the Appellants, because “the respondent represented that the appellants could file a second action for their claims that exceeded the constructional defect class action’s scope, and therefore respondent is judicially estopped from arguing that the action should be dismissed on res judicata grounds.” 

• Email This
• Print
• Comments
• Trackbacks

On July 27, the Nevada Supreme court issued its decision in Halverson v. Hardcastle.   The Court denied the petition in part, and granted it in part. The Court affirmed the Chief’s Judge’s ability to assign cases and to appoint a committee to work with a judge. However, the Court found that the Chief exceeded her authority in barring a judge from the courthouse, because less drastic measures would have served to remedy the situation.  The court stated:

In Nevada, a chief judge is broadly authorized to carry out the district courts’ inherent authority to ensure the orderly administration of judicial business.  Consequently, so long as the chief judge follows relevant statutes and court rules, he or she may convene committees of judges to review another judge’s conduct in processing cases and even remove or reassign cases.  Further, under certain circumstances, she may properly exercise her supervisory authority over court business to ban another judge from the courthouse.  Her supervisory authority over other judges’ exercise of judicial functions, however, is limited to emergency circumstances that were not demonstrated here . . . .

The decision was unanimous, with two justices, Gibbons and Cherry, having previously recused themselves.

• Email This
• Print
• Comments
• Trackbacks

The Nevada Supreme Court today issued five published opinions:

In Rose v. State, the Nevada Supreme Court upheld the conviction of 20 counts of sexual assault on a minor under the age of fourteen. The Court rejected arguments that the evidence was insufficient, because, even though the victim could provide the exact dates she was assaulted, she did testify that the assaults occurred nearly every time she stay at the defendant’s home, and did not occur while the defendant was deployed elsewhere on military service.  The Court rejected numerous other claims of error, including claims of plain error, most notable of which was the claim that the prosecutor improperly referred to the defendant as a predator during closing argument. The Court found the statement was supported by the evidence.  However, Court did find that the prosecutor’s appeal for justice for the victims was improper, but did not rise to the level of plain error.  

In Anvui, LLC v. G.L. Dragon, LLC, the Nevada Supreme Court reversed the order of the district court granting summary eviction. The Court first ruled that the standard of review of a district court’s order granting summary eviction is the same that for a order granting summary judgment. Applying that standard, the Court found the presence of ambiguity in the lease as to the remedy for default precluded summary eviction.

In Nelson v. Heer, the Nevada Supreme Court held that NRS 113.140 does not require a seller to disclose defects in the property of which the seller in unaware, nor does it require the seller to disclose all past defects that have been repaired. Here, the seller was unaware that past, now repaired, water damage had led to the presence of mold on the property, and therefore, had no duty to disclose it.   

In Herup v. First Boston Financial, the Nevada Supreme Court adopted an objective standard for determining a transferee knew or should have known of a debtor’s fraudulent purpose in transferring assets under the Uniform Fraudulent Transfer Act, NRS Chapter 112. Here, the sellers sold a business to the First Boston, and then respossessed it and sold it to Herup. Because the Court failed to make specific findings of fact on the issue of Herup’s good faith, the Court remanded for a new trial.

In Manwill v. Clark County, the Nevada Supreme Court clarified NRS 617.457(1), which creates a conclusive presumption that entitles firefighters with heart disease to occupational disease benefits from the date of disablement, the date of disablement occurs at least five years after full-time, uninterrupted work as a firefighter.  Manwill’s heart disease pre-dated the completion of five years uninterrupted service, but his disablement did not occur until after five years of service. The Court concluded the statutory conclusive presumption applies where the disablement occurs after the requisite service. However, because in this case there was no determination of actual disablement, the matter was remanded for further administrative proceedings.

• Email This
• Print
• Comments
• Trackbacks

The Nevada Supreme Court issued six published opinions today:

In Schuster v. Dist. Ct., the Court denied a writ for habeas seeking dismissal of an indictment because the grand jury was no instructed on the theory of self defense.   The Court rejected the argument that the grand jury must, in addition to being presented exculpatory evidence, must also be instructed as to the legal significance of that evidence. The Court held that such instruction would expand the grand jury’s role from investigatory and accusatory to an adjudicatory.

In Callie v. Bowling, the Court held that a judgment creditor in a domesticated foreign judgment may not add a nonparty to a final judgment under the alter ego doctrine, simply by moving to amend the judgment, as such a procedure violates the due process rights of the nonparty. An independent action is required.

In Valdez v. Employers Ins. Co. of Nev., the Court substitutes this opinion for that that originally issue in this case November 9, 2006, but does not change the outcome.  The Court concludes that conclude that “physician choice under the managed-care system is a procedural and remedial means of administering an injured worker’s vested right to workers’ compensation.”

In Matter of Discipline of Droz, the Court  approved the recommendation that Utah attorney Paul Droz, never licensed in Nevada, be enjoined from practicing law in Nevada or appearing in any Nevada court.\

In Arata v. Faubion, the Court upheld the constitutionality of NRS 41.440, which imposes vicarious liability upon the owners of car who loan the vehicles to immediate family members, as the statute is rationally related to a legitimate purpose.. However, the court remanded the cause of action here for factual findings to determine whether a step parent of an adult living in the same home falls with the “other immediate family member” language of the statute.

In Ellis v. Carucci, the Court modifies the test for a change in physical custody of a minor child to require (1) a substantial change in circumstances affecting the welfare of the child, and (2) with the modification serving the best interests of the child.

• Email This
• Print
• Comments
• Trackbacks

In Schmidt v. Washoe County, the Nevada Supreme Court clarified certain requirements under the Open Meeting Law,  NRS Chapter 241. The controversy arose after the Washoe County Board of Commissioners pulled an item from its noticed agenda for a January 2005 meeting.  Thereafter, the Board held a caucus meeting on March 21, 2005,  on a date and in a place other than those normally scheduled, with notice the plaintiff contends was inadequate as to content. The Plaintiff brought two suits for violation of the Open Meeting Law, and the district court dismissed the complaints.

The Court held that while NRS 241.020 requires an agenda to be noticed, it does not require the public body to address every issue on the agenda. The body is free to pull any item from an agenda. Pulling items from an agenda is not an action that requires advance notice, and the public body may hold discussions about pulling items from the agenda outside a meeting.

The Court held the March 21 meeting qualified as a special meeting, specifically authorized by NRS 241.090 and 241.085, because the meeting’s agenda included sufficient business to come before the board, the requirement for a special meeting. The notice of the caucus meeting was adequate, as it notified the public of the intent to discuss certain bill drafts, a list of which drafts was placed on the Board’s website.

Because the Board did not violate the open meeting law, the dismissal of the complaints was affirmed.

• Email This
• Print
• Comments
• Trackbacks

In Johnson v. State,  the Nevada Supreme Court again addresses the issue of whether it is  possible to be convicted of attempting to lure a child under NRS 201.560, when the child in question was actually an adult law enforcement officer  posing as a child on the Internet.

You may recall that last December, in  State v. Colosimo, 142 P.3d 352 (2006),  the Court reversed a conviction for luring a child, because the “child” in that case was also an adult law enforcement officer.  The relevant statutory language provided: “A] person shall not knowingly contact or communicate with or attempt to contact or communicate with a child who is less than 16 years of age and who is at least 5 years younger than the person with the intent to persuade, lure or transport the child . . .” The court held that because the statute required the contact to be with a “child who is less than 16 years of age,” the conviction could not stand.

That decision led to a change in the law in the recent legislative session, where AB72 amended the statute’s language to include the perpetrator’s belief that the person with whom he is communication is a child under the age of 16.  Governor Gibbons signed the bill into law on September 18.

Meanwhile, the Court must deal with the cases brought under the old language. In this case, Johnson was fooled by several undercover officers posing as 14 year olds. Due to the content of online communications, Johnson was charged with attempting violation of NRS 201.560, and entered a plea to one count. In a habeas proceeding, he raises the impossibility defense, and also claimed ineffective assistance of counsel.

The Court affirmed the conviction, holding that because the conviction here was for attempt, the defendant’s intent, rather than what he could actually have done, is the key issue. Johnson hoped to lure a child, even though he was himself the one being reeled in.  

• Email This
• Print
• Comments
• Trackbacks

It’s been a busy day for opinions. I’ll have more description of today’s rulings later, but meanwhile, here are links:

The Nevada Supreme Court issued two opinions:

• Johnson v. State
• Schmidt v. Washoe County

The Ninth Circuit issued one opinion, an immigration appeal matter:

Goel  v. Gonzales

The U.S. Supreme Court issued three opinions,

Bowles v. Russell

Permanent Mission of India to United Nations v. City of New York

Davenport v. Washington Ed. Assn.

• Email This
• Print
• Comments
• Trackbacks

In Edwards v. Ghandour, the Nevada Supreme Court clarifies the effect of a bankruptcy filing on the five year deadline to bring a case to trial.  Filing of a bankruptcy petition, with the stay that accompanies such a filing, operates to toll the running of the five year period only if a defendant filed the petition, and only as to the defendant who files the petition. The Court also held that for purposes of claim preclusion, a judgment for which an appeal pending is final.

Edwards  filed a complaint, in 1998, alleging assorted fraud-related claims against several defendants. In 2000, one defendant filed a bankruptcy petition, with a resulting automatic stay of any actions to collect on a debt against that defendant. This stay was lifted in 2001, but later in that year, erroneously believing that stay was still in force, the district court entered a stay  of Edwards's action. Edwards, who was now acting in pro per  because of the disbarment of his counsel, filed a notice informing the court that the bankruptcy stay had been lifted. However, Edwards did not request the district court to lift the stay of his action or otherwise allow the case to progress.  The district court realized its error in April 2002, and lifted the stay. Various defendants, iincluding he bankruptcy petitioner, were dismissed or defaulted over the following months, but in 2004, the district court dismissed the remaining defendants due to the expiration of the five year rule of NRCP 41 (e). 

Edwards appealed. and also filed a new action, alleged the same claims against the remaining defendants. This complaint was dismissed pursuant to NRCP 41(e)’s claim-preclusion provision.  Edwards appealed this ruling as well, and the two appeals were combined.

In affirming the dismissal on the basis of the five-year rule, the Court found the bankruptcy filings ultimately had no impact on the defendants who were dismissed under the five-year rule. The Court found Edwards’ failure to take action to progress the case significant. 

In affirming the dismissal on the basis of claims preclusion, the Court joined those jurisdictions who hold a judgment pending appeal final for such purpose, noting “[o]therwise, a party against whom a judgment is entered could avoid its consequences for a considerable period of time and, in situations such as the one at hand, could engage in protracted litigation and create significant expenses for the other parties.”

• Email This
• Print
• Comments
• Trackbacks

In McGrath v. Department of Public Safety,  the Nevada Supreme Court held that a workers’ compensation claimant must pinpoint a “discrete, identifiable event” giving rise to stress in order to receive compensation.

McGrath alleged that, as a result of a pattern of harassment by coworkers, she developed severe stress-related mental and physical injuries.  However, she was unable to trace her symptoms to a “mental injury caused by extreme stress in time of danger,” which stress was primarily caused by “an event that arose out of and during the course of [her] employment,” as required by NRS 616C.180(3)(a) and (b). 

The Court rejected McGrath’s argument that the preclusion of stress caused by “gradual mental stimulus” did not exclude stress caused by a deliberate campaign of harassment. The Court looked to the plain meaning of the term “event,” citing the definition proffered by Webster’s Third: “a noteworthy occurrence or happening . . . an unusual or significant development.” Accordingly, the Court determined that the stress had to be caused by “a sudden, tangible, traumatic experience.”

• Email This
• Print
• Comments
• Trackbacks

In Monroe v. Columbia Sunrise Hospital, the Nevada Supreme Court vacated the dismissal of a medical malpractice action brought by a mother as a result of complications relating to her son’s birth. The dismissal had been granted on the basis of NRCP 41(e), which requires dismissal of any cause of action not brought to trial within five years of the filing date. Here, the trial court had previously granted a motion for summary judgment on all of the mother’s claims and some of the son’s claims, which judgments were later overturned. The Court held the grant of summary judgment on all of the mother’s claims was, for purposes of NRCP 41, a “trial.” Accordingly, the five year rule had been satisfied as to her claims. The Court rejected the hospital’s claim that the summary judgment had to dispose of all claims of all parties to constitute a trial.

However, the Court upheld the dismissal of the claims of the son. Only a portion of his claims had been resolved by summary judgment; a partial resolution of the matter did not constitute a trial.  The Court further found that dismissal of his claims with prejudice was appropriate, rejecting the argument that the statute of limitations has not expired on the son’s claims.

The Court also held that the additional three year period permitted where an appeal of a judgment has resulted in a new trial, does not apply where, as here, the vacating of the judgment was obtained through writ rather than appeal.

• Email This
• Print
• Comments
• Trackbacks

In Savage v. Pierson, the Nevada Supreme Court answers a question certified to it by the United States Bankruptcy Court for the District of Nevada. The Court determined that a residential rental security deposit is not exempt from the claim of creditors either under the homestead exemption of NRS 21.090(1)(l) or the dwelling exemption under NRS 21.090(1)(m).

• Email This
• Print
• Comments
• Trackbacks

In Silver State Elec. v. State, Dep't of Tax, the Nevada Supreme Court upheld the dismissal of a petition to review a decision of the Tax Division. The Court determined that a regulation requiring a responsible party to personally guarantee an agreement to pay tax at a later date did not exceed the scope of a statute which conditioned a petition for judicial review upon either payment of tax or an agreement to pay at a later date.  The Court held that NAC 360.452’s  requirement that a responsible party personally guarantee the agreement was not outside the scope of NRS 360.395 because the regulation relates to the guarantees permitted by statute.

The opinion does not explain why the additional requirement that a responsible party guarantee the agreement is not an impermissible extension of the statutory authority. However, the Court notes that the legislature did not change the statutory requirement of an agreement after the Tax Division’s adoption of the regulation.

• Email This
• Print
• Comments
• Trackbacks

In Bero-Wachs v. Law Office of Logar & Pulver, the Nevada Supreme Court held that an attorney lien does not attach to exempt property awarded in a divorce decree--in this case, court-ordered alimony and IRAs. As written, the exemption and attorneys lien statutes created a conflict. The Court held that because the exemptions were codified in response to the mandate found in Nev. Const. art. 1, § 14, they must  prevail over the attorney lien statutes.   

The Court also determined that an attorney cannot include an accountant’s fees in his attorney’s lien if the client has entered into an independent contract with the accountant to pay for the accountant’s fees. The attorney may include such costs in the lien only if the attorney is jointly liable with the client for payment for the expert’s services.

• Email This
• Print
• Comments
• Trackbacks

The Nevada Supreme Court vacated the district court's denial of a motion for post conviction relief of a defendant sentenced to death, due to improper action by the State and the district court in Byford v. State.  The Court remanded the matter to the district court for a hearing on the motion to reconsider. The order denying the relief had been entered following remittitur from the Supreme Court, vacating a previous denial of the same motion for failure to make adequate findings.  The new order had been submitted by the State to the district court, and granted, without notification to the defendant or his counsel, and without a hearing of the motion.  The Court noted the action was improper as 1) EDCR 7.21 permits an proposed order to be submitted only after a ruling, with findings of fact and conclusions of law, has been made; 2) NCJC Canon 3B(7) requires a court to permit every person with an interest in a matter the opportunity to be heard; 3) the Court had, in its previous ruling, ordered the district court to reconsider Byford's clam of ineffective assistance of counsel, but endorsement of an order unilaterally drafted by the state was not reconsideration.  In light of the nature of the claims made, an evidentiary hearing on the issue was required.

The Court also noted that neither NRCP 52(b) nor EDCR 7.21 require objections or amendments to a proposed order as a condition to appeal.

• Email This
• Print
• Comments
• Trackbacks

• Email This
• Print
• Comments
• Trackbacks

• Email This
• Print
• Comments
• Trackbacks

The Nevada Supreme Court upheld the disqualification of a law firm representing an insured in a bad faith claim in  Nevada Yellow Cab Corp. v. Dist. Ct.  The attorney working on the case had previously been a partner in the firm the insurer had hired to defend  the insured in the underlying personal injury matter. While he had not worked on the underlying claim, an associate who had joined him at his new firm had done extensive work on the case, and had acquired information regarding the insurer's handling of the claim.  The Court adopted the majority rule that counsel hired by the insurer to defend the insured represents both the insurer and insurer.  The previous rules regarding conflict, which did not permit creation of a "Chinese wall," applied to this case.

• Email This
• Print
• Comments
• Trackbacks

• Email This
• Print
• Comments
• Trackbacks

• Email This
• Print
• Comments
• Trackbacks

• Email This
• Print
• Comments
• Trackbacks

Nevada's version of the three strike rule does not violate the U.S. Supreme Court's prohibition against punishment enhancement for facts not found by  a jury. In O’Neill v. State, the Court upheld NRS 207.010, because the statute grants no discretion to a district corut to impose an habitual offender adjudication for any factors beyond previous convictions.

• Email This
• Print
• Comments
• Trackbacks

The Nevada Supreme Court questioned whether the legislature actually made its intended changes to a statute involving  evaluations of sex offenders.  In Austin v. State, the Court rejected a challenge to the qualifications of a clinical social worker who performed the psychosexual examination of Austin, who had been convicted of felony statutory seduction.  Probation is for this offense only if the results of a psychosexual evaluation and certification demonstrate the defendant is not a high risk for reoffending.  Here, the social worker concluded Austin was a high risk to reoffend.  Austin argued that such evaluations should be performed by psychologists or psychiatrists, not social workers. 

The Court agreed that the 2001 amendments to NRS 176A.110 were likely intended to increase the qualifications of those who perform such evaluations.  However, as written, the legislature heightened the professional qualifications  only for evaluations required by NRS 176A.110(3), but not required by NRS 176.139.  The incongruous result of this wording is that had Austin's conviction been for a gross misdemeanor, a psychiatrist or psychologist would have had to perform his evaluation; his felony conviction, in contrast, allowed the evaluation to be performed by a clinical social worker.

• Email This
• Print
• Comments
• Trackbacks