Law Commons^™

Locker V. State Of Nevada, 138 Nev. Adv. Op. 62 (Sep. 1, 2022), Michael Pappas

Nevada Supreme Court Summaries

A first or second conviction for a category E felony possession of a schedule I or schedule II narcotic under fourteen grams requires the district court to defer conviction when the defendant consents to a drug treatment plan under NRS 176.211(3)(a)(1). When that statute applies, the courts have no discretion; it must defer to a drug rehabilitation program if the defendant consents.

Elk Point Country Club Hoa V. K. H. Brown, Llc, 138 Nev. Adv. Op. 60 (Aug. 18, 2022), Alexander Provan

Nevada Supreme Court Summaries

When a planned communities’ governing documents restrict real property use to residential use only, NRS 116.340(1)(a) permits a real property owner to use real property for transient commercial use so long as the governing documents of the community do not prohibit such use. Transient commercial use is the use of property, for remuneration, as transient lodging, if the term of occupancy is thirty days or less—i.e., short-term rentals. It is a reversable error to interpret bylaws and governing documents as prohibiting rentals when they use the terms “tenants” and

Matkulak V. Davis, 138 Nev. Adv. Op. 61 (Sept. 01, 2022), Sam Pope

Nevada Supreme Court Summaries

Deviations from the Nevada Administration Code’s framework for calculating a parent’s base child support obligations may not exceed the party’s total obligation. Furthermore, a district court’s decision to award reasonable attorney fees and costs will stand absent an abuse of discretion. Here, the district court deviated from NAC 425.150(1)’s framework and increased the appellant’s child support obligation by nearly $2,000 per month over NAC 425.140’s base child support obligation. This deviation exceeded the appellant’s monthly total obligation which the district court calculated to $823.04. Therefore, the Supreme Court of Nevada reversed the district court’s decision and remanded with instructions to …

Martel V. Hg Staffing, Llc, 138 Nev. Adv. Op. 56 (Sept. 08, 2022), Giacomo (Jack) Silvestri

Nevada Supreme Court Summaries

The Nevada Supreme Court affirmed the district court’s dismissal and judgment against claims made by a class of employees against their previous employer, HG Staffing, LLC. The Court made four major findings. First, the two-year limitations period applies to wage claims arising under NRS 608.016, NRS 608.018, NRS 680.020, and NRS 680.050. Second, a Collective Bargaining Agreement (CBA) need not be signed by the parties or unexpired; mutual assent is enough to validate the agreement. Third, if claims for wages are already time barred, employees cannot try to penalize the employer under NRS 608.040. Finally, if an active CBA contains …

Federal National Mortgage Ass'n V. Westland Liberty Village, Llc, 138 Nev. Adv. Op. 57 (Aug 11, 2022), D'Ahna Scott

Nevada Supreme Court Summaries

Federal National Mortgage Association v. Westland Liberty Village, LLC required the Nevada Supreme Court to clarify when a lender or its assignee is entitled to the appointment of a receiver after a borrower defaults on a real property loan agreement. In doing so, the Court interpreted two Nevada Statutes, NRS 32.260 and NRS 107A.260(1)(a)(1).2 Together, these statues provide when the appointment of a receiver is based on the discretion of the court or is a matter of right. Here, The Nevada Supreme Court held that the borrower, Westland Liberty Village (Westland) defaulted on their loan agreement with National Mortgage Association …

Ceballos V. Np Palace, Llc, 138 Nev. Adv. Op. 58 (August. 11, 2022), Lindsay Reynolds

Nevada Supreme Court Summaries

NRS 613.333 creates a private right of action in favor of an employee discharged from employment for engaging in the lawful use in this state of any product outside the employer’s premises during the employee’s nonworking hours. Although marijuana is legal in Nevada, because federal law criminalizes marijuana in Nevada, its use is not “lawful . . . in this state” and, therefore, does not provide for a private right of action. Further, an employee discharged for testing positive for recreational marijuana at work does not have a common-law tortious discharge claim under NRS 678D.510(1)(a).

Myers V. Haskins, 138 Nev. Adv. Op. 51 (Nev. Ct. App. June 30, 2022), Olivia Williamson

Nevada Supreme Court Summaries

This case concerns whether the district court properly denied a motion to modify custody of a minor under Rooney. Since that decision in the early 1990’s, attorneys and district court judges have been unclear on what sources and allegations can be considered in determining a potentially meritorious claim. Caleb Haskins and Lisa Myers, parents of S.H., disputed whether a district court must consider alleged facts or offers of proof by the nonmovant. The Court of Appeals held that a district court must generally only consider properly alleged facts in the movant’s verified pleadings, affidavits, or declarations in determining if the …

Torremoro V. Eighth Jud. Dist. Ct., 138 Nev. Adv. Op. 54 (July 07, 2022), Mackenzie Sullivan

Nevada Supreme Court Summaries

The Supreme Court of Nevada addressed the standard for substituting an expert witness after the close of discovery and considered whether the district court abused its discretion in modifying the scheduling order, reopening discovery, and granting the motion to substitute. Torremoro requested a writ of mandamus requesting this Court to instruct the district court to reverse its order allowing substitution of an expert witness. The Court found that NRCP 16(b)(4)’s “good cause” test, in combination with any relevant local rules, provides the standard governing when a district court may modify a scheduling order. 2 The Court also concluded that the …

R.J. Reynolds Tobacco Co. V. Eighth Jud. Dist. Ct., 138 Nev. Adv. Op. 55 (July 28, 2022), Christopher Sommers

Nevada Supreme Court Summaries

In an opinion drafted by Justice Cadish, the Court clarifies whether a plaintiff has the standing to assert a deceptive trade practice claim under NRS 41.600(1) when the plaintiff never purchased or used products manufactured by the defendant. The Court found that a plaintiff has standing as long as they can show they are directly harmed by the deceptive trade practices of the defendant. Additionally, it found that the plaintiffs pleaded sufficient facts, including that they were directly harmed by the petitioner’s false and misleading advertising. Thus, the Court denied the defendant’s petition for writ relief.

Artmor Invs., Llc V. Nye Cnty., 138 Nev. Adv. Op. 53 (July 7, 2022), Josette Vanderlaan

Nevada Supreme Court Summaries

NRS 361.610(4) requires claimants for excess proceeds from tax sales to file a claim within one year of the deed’s recording. One timely filed claim under the statute does not toll or terminate the one-year deadline for other claimants entitled to a portion of the excess proceeds. Further, counties are not required to distribute excess proceeds to all former owners when only a portion has been timely claimed.

Blount V. Blount, 138 Nev. Adv. Op. 52 (Jul. 07, 2022), Daniel Z. Weiss

Nevada Supreme Court Summaries

The court ruled that the statutory language found in NRS 125A.465, Nevada’s codification of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), is unambiguous and that its plain meaning applies as written. The court specifically addressed the timeline in which parties with existing custody or visitation rights can challenge new registrations of custody orders seeking to amend or alter existing orders. Appellants attempted to block the Nevada registration of an updated child custody determination ordered by a neighboring Tribal Court, by filing a challenge to the registration twenty-four days after receiving notice, four days after the allowable time requirement. …

Evans-Waiau Vs. Tate 138 Nev. Adv. Op. 42 (June 16, 2022), Anne-Greyson Long

Nevada Supreme Court Summaries

Both a procedural and substantive question were presented in this appeal. The procedural question asked whether a party must move for a new trial in district court to preserve attorney misconduct claims on appeal. The Court recently held that a party is not necessarily required to move for a new trial to preserve its trial error-based arguments or ability to seek a new trial as an appellate remedy.

Respondents argue that the Court’s decision in Lioce v. Cohen requires a party to move for a new trial to preserve a specific claim that attorney misconduct warrants a new trial. 3 …

Diamond Nat. Res. Prot. And Conservation Ass'n Vs. Diamond Valley Ranch, 138 Nev. Adv. Op. 43 (June 16, 2022), Anne-Greyson Long

Nevada Supreme Court Summaries

This case addressed the scarcity of water in the Diamond Valley Hydrologic Basin located in Eureka County, Nevada. The Basin was over-appropriated and over-pumped causing the groundwater withdrawals from the Basin to exceed its perennial year. In 2011, Nevada Legislature enacted NRS 534.037 and NRS 534.110(7) to address the scarcity of groundwater in Nevada’s over-appropriated basins. NRS 534.110(7) provides that the State engineer may designate an over-appropriated basin a Critical Management Area (VMA). After an area is designated, NRS 534.037 allowed rights holders to petition the State Engineer to approve a Groundwater Management Plan (GMP) that set forth the necessary …

Brown (Larry) V. State Of Nevada, 138 Nev. Adv. Op. 44 (June 23, 2022), Anne-Greyson Long

Nevada Supreme Court Summaries

In this appeal, the Court considered whether a jury may consider footwear impression evidence without the aid of expert testimony. The Court determined it was proper here. The Court also considered whether the district court violated the defendant's rights under the Confrontation Clause by allowing a witness to testify via a two-way video and limiting cross-examination to protect proprietary trade secrets. The Court determined that the district court failed to make express findings under Lipitz. The Court also concluded that the district court did not abuse its discretion by limiting witness testimony. No reversal was granted, and the court …

Leigh-Pink V. Rio Properties, Llc., 138 Nev. Adv. Op. 48 (Jun. 30, 2022), Candace Mays

Nevada Supreme Court Summaries

In a fraudulent conceal claim, this Court declined to restate a certified question but answered that a movant may not recover damages under a theory of fraudulent concealment without first establishing the entitlement to damages.

Helton V. Nev. Voters First Pac, 138 Nev. Adv. Op. 115 (June 28, 2022), Servando Martinez

Nevada Supreme Court Summaries

In an opinion drafted by Justice Herndon, the Court considered whether the description of effect articulates an overarching purpose and explains how provisions relate to a single subject. This appeal involves the requirements for Initiative petitions as set forth by the Nevada Constitution. In this appeal, the Court addresses three of them: the single-subject requirement, the description-of-effect requirement, and the funding requirement for a proposal that makes an appropriation or requires the expenditure of money. First, the Court clarified that even if an initiative petition proposes more than one change to Nevada law, it may still meet the singlesubject requirement, …

Hung Vs. Berhad, 138 Nev. Adv. Op. 50 (June 30, 2022), Candace Mays

Nevada Supreme Court Summaries

The Supreme Court of Nevada considered whether the district court erred in dismissing the appellants’ complaint on procedural grounds without granting leave to amend so that they could remedy any deficiencies in their pleadings thus far. The Court held that neither the appellants’ original complaint, first amended complaint, nor proposed second amended complaint, contained facts sufficient to show leave to amend would not be futile. Accordingly, the Court affirmed the district court’s dismissal of the complaint.

Cegavske V. Hollowood, 138 Nev. Adv. Op. 46 (June 28, 2022), Servando Martinez

Nevada Supreme Court Summaries

In an opinion drafted by Justice Stiglich, the Court considered whether initiative sponsors may withdraw a petition or whether an initiative petition’s signatories or the public acquire any rights in a petition. This appeal involves two verified initiative petitions to place questions on the ballot for the Nevada 2022 general election and the sponsors' withdrawal of the initiative petitions. Although Nevada law provides a procedure to withdraw an initiative petition and directs that “no further action may be taken on [a withdrawn] petition,”2 Secretary of State Barbara Cegavske refused to honor the withdrawals of the two petitions at issue here. …

Education Freedom Pac V. Reid, 138 Nev. Adv. Op. 47 (June 28, 2022), Servando Martinez

Nevada Supreme Court Summaries

This appeal comes from a district court order enjoining an initiative petition’s circulation and the initiative’s placement on the ballot. In an opinion drafted by Justice Hardesty, the Court considered whether the district court properly denied EFP’s request to dismiss the complaint because the district court had not set the matter for a hearing within 15 days. The Court acknowledges that, under the Nevada Constitution, an initiative petition cannot require appropriations or expenditures, must adequately inform potential signatories about the petition’s goal, and cannot invade the Legislature’s primary role of proposing and enacting laws. The Court concluded that that the …

Martinez V. Avila, Jr., 138 Nev. Adv. Op. 49 (June 30, 2022), Candace Mays

Nevada Supreme Court Summaries

The Supreme Court of Nevada reviewed a district court’s decision granting legal paternity to the biological father of a child over the objection of the person who assumed paternity over the child pursuant to a Voluntary Parenting Agreement. The Court held that while paternity can be established and memorialized through written instruments, biological paternity is supreme.

Thomas V. State, 138 Nev. Adv. Op. 37 (May 26, 2022), Candace Mays

Nevada Supreme Court Summaries

The Nevada Supreme Court reviewed the district court’s denial of the petitioner’s petition for post-conviction relief, which the lower court issued without an evidentiary hearing. The Court considered whether the district court erred in denying the petition without a hearing based on several contentions raised by the petitioner on appeal. The Court ultimately affirmed the order in part, reversed it in part, and remanded the case for further proceedings on the two claims for which the appellant was entitled to relief.

Sr Construction, Inc. V. Peek Brothers Construction, Inc., 138 Nev. Adv. Op. 41 (June 2, 2022), Candace Mays

Nevada Supreme Court Summaries

The Supreme Court, reviewing an appeal from the district court’s denial to compel arbitration, contemplated the scope of and applicability of a master subcontractor agreement’s arbitration clause when the language did not unequivocally compel subcontractors to arbitrate disputes. The Court held that where the arbitration provision of a contract is broad, the presumption toward arbitrability prevails.

Guidry V. State, 138 Nev. Adv. Op. 39 (June 2, 2022), Candace Mays

Nevada Supreme Court Summaries

The Supreme Court of Nevada, reviewing the case de novo, considered whether the errors committed by the prosecution at trial entitled the appellant to relief from her convictions. The Court held that the ambiguous jury instruction on the count of second-degree murder was a prejudicial error, warranting a reversal of the conviction. As to the charges of robbery, grand larceny, and leaving the scene, for which the appellant was also convicted, claims of prosecutorial misconduct and challenges to the sufficiency of evidence were not sufficient to warrant a reversal. Given the reversal on the second-degree murder charge, however, the Court …

Harris V. State, 138 Nev. Adv. Op. 40 (June 2, 2022), Candace Mays

Nevada Supreme Court Summaries

The Nevada Supreme Court considered whether the district court erroneously dismissed the rights deprivation claims of the appellant, an incarcerated individual, on procedural grounds. The Court held that the lower court erred in dismissing the appellant’s claims with prejudice under NRCP 12(b)(5) when he had pleaded facts sufficient to place the respondents on notice of the nature of the claim and relief sought, in accordance with Nevada’s notice-pleading standard. The Court also held that the lower court erred in dismissing the appellant’s complaint with prejudice, without granting leave to amend to resolve the deficiencies in service, and without an explanation …

Shea V. State Of Nevada, 138 Nev. Adv. Op. 36 (May 26, 2022), Candace Mays

Nevada Supreme Court Summaries

The Nevada Supreme Court affirmed the First Judicial District Court of Carson City’s dismissal of the appellant’s claim as non-justiciable. The Court held that claims related to the inadequacy of the State’s public education present a non-justiciable political question and that the education clauses of the State Constitution are ‘aspirational’ in nature and do not represent a guarantee of a specific outcome.

Flangas V. Perfect Marketing, Llc 138 Nev. Adv. Op. 26 (April 14, 2022), Anne-Greyson Long

Nevada Supreme Court Summaries

The Court affirmed the district court’s order denying a motion to set aside a domesticated foreign judgement after respondent was properly served and judgement was properly domesticated in Nevada. The Court also concluded that enforcement of the foreign judgement did not violate due process because respondent served the domestication notice by certified mail. This type of service is reasonably calculated to reach the interested party. The Court affirmed.

Apco Constr., Inc. Vs. Helix Elec. Of Nev., Llc, 138 Nev. Adv. Op. 31 (May 5, 2022), Servando Martinez

Nevada Supreme Court Summaries

This is an appeal from a district court judgment after a bench trial in a contract action, arising from a dispute regarding delay costs between a contractor and subcontractor. The question considered is whether the district court properly applied the covenant of good faith and fair dealing when it awarded delay damages by signing a waiver and release to receive its retention. The standard for the covenant of good faith and fair dealing “prohibits arbitrary or unfair acts by one party that work to the disadvantage of the other.”2 The court also interpreted whether the subcontractor waived its right to …

Sena (Christopher) V. State, 138 Nev. Adv. Op. 34 (May 26, 2022), Servando Martinez

Nevada Supreme Court Summaries

In an opinion drafted by Justice Herndon, the Court clarified their application of the statute of limitations to crimes involving sexual abuse of children, concluding that the statute of limitations did not preclude any of the charges originally brought against Sena and that, under the doctrine of lenity, the unit of prosecution is per victim, not per instance. Therefore, the Court vacated six of the nine incest convictions, two counts of possession of visual presentation depicting the sexual conduct of a child, and one count of child abuse or neglect. The Court ultimately remanded this case for further proceedings.

Nied V. State Of Nevada, 138 Nev. Adv. Op. 30 (May 5, 2022), Servando Martinez

Nevada Supreme Court Summaries

This is an appeal from a judgment of conviction, arising from a guilty plea of reckless driving resulting in substantial bodily harm. The question considered is whether one could be charged to pay restitution based on initial billings that were not ultimately charged. The court also considered whether treatment for suicide attempts connected to an injury are applicable in computing restitution damages. The court concluded that the restitution awarded was not supported by competent evidence and thus ordered that the restitution portion of the judgment of conviction be vacated. The court further remanded the case to the district court for …

Nev. Pol’Y Rsch. Inst., Inc., V. Cannizzaro. 138 Nev. Adv. Op. 28 (Apr. 21, 2022), Anne-Greyson Long

Nevada Supreme Court Summaries

The Court held that it may apply the public-importance exception in cases where a party seeks to protect the essential nature of “a government in which the three distinct departments…legislative, executive, and judicial remain within the bounds of their constitutional powers.” In Nevada Policy Research Institute, Inc. v Cannizzaro, the Court determines proper standing and evaluates the public-importance exception laid out in Schwartz.