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2016

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Nevada Supreme Court Summaries

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Leavitt V. State, 132 Nev. Adv. Op. 83 (Dec. 29, 2016) (Per Curiam), Brent Resh Dec 2016

Leavitt V. State, 132 Nev. Adv. Op. 83 (Dec. 29, 2016) (Per Curiam), Brent Resh

Nevada Supreme Court Summaries

The Court expressly repudiated the Ninth Circuit’s interpretation of Nevada law in Riley v. McDaniel and therefore found that Riley cannot serve as the basis for an argument that good cause exists to overcome a procedural default in filing a petition for a writ of habeas corpus.

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Dykema V. Del Webb Communities, Inc., 132 Nev. Adv. Op. 82 (Dec. 29, 2016), Christopher Giddens Dec 2016

Dykema V. Del Webb Communities, Inc., 132 Nev. Adv. Op. 82 (Dec. 29, 2016), Christopher Giddens

Nevada Supreme Court Summaries

The Court determined that a notice of completion’s recording date—not the date on which the notice is signed and notarized—signifies when the notice is “issued” to trigger “substantial completion” under NRS 11.2055(1)(b) for NRS Chapter 11’s construction defect statutes of repose.

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Kaplan V. Dutra, 132 Nev. Adv. Op. No. 80 (Dec. 1, 2016) (En Banc), Hayley Cummings Dec 2016

Kaplan V. Dutra, 132 Nev. Adv. Op. No. 80 (Dec. 1, 2016) (En Banc), Hayley Cummings

Nevada Supreme Court Summaries

The Court, sitting en banc, reviewed a certified question from the United States Bankruptcy Court, determining that under NRS 21.010(1)(u) a debtor is entitled to a personal injury exemption of $16,150 for each personal injury claim.

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Mayo V. Eigh. Jud, Dist. Ct., 123 Nev. Adv. Op. 79 (Nov. 23, 2016), Alex Velto Nov 2016

Mayo V. Eigh. Jud, Dist. Ct., 123 Nev. Adv. Op. 79 (Nov. 23, 2016), Alex Velto

Nevada Supreme Court Summaries

The Court found that the district court did not err when it found no violation of NRS 172.145(2). The Court interpreted NRS 172.145(2), which creates a duty on district attorneys to submit evidence to a grand jury if they are “aware” it will “explain away the charge.” The Court determined that a district attorney must be “aware” evidence has exculpatory value before there is a duty to present the evidence to a grand jury. The district attorney is not obligated to present exculpatory evidence it possesses but does not recognize as exculpatory. In the case at issue, because the district …

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Pacific Western Bank V. Eighth Jud. Dist. Ct., 132 Nev. Adv. Op. 78 (Nov. 3, 2016), Margarita Elias Nov 2016

Pacific Western Bank V. Eighth Jud. Dist. Ct., 132 Nev. Adv. Op. 78 (Nov. 3, 2016), Margarita Elias

Nevada Supreme Court Summaries

The Court concluded that funds contained in financial accounts under 26 U.S.C. § 529 (“529 accounts”) constitute a debt and that these funds are subject to execution and garnishment in Nevada despite their physical location elsewhere. Specifically, the Court adopted Section 68 of the Restatement (Second) of Conflict of Laws and concluded that funds contained in 529 accounts are a debt, not a chattel.

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Mdc Rests. V. Eighth Jud. Dist. Ct., 132 Nev. Adv. Op. 76 (Oct. 27, 2016), Alysa Grimes Oct 2016

Mdc Rests. V. Eighth Jud. Dist. Ct., 132 Nev. Adv. Op. 76 (Oct. 27, 2016), Alysa Grimes

Nevada Supreme Court Summaries

To “provide” health benefits under the Minimum Wage Amendment, an employer need only offer to employees (rather than enroll them in) a qualifying health benefit plan. Tips are not included in an employee’s gross taxable income for calculating maximum health benefit plan premiums.

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Perry V. Terrible Herbst, Inc., Nev. Adv. Op. 75 (Oct. 27, 2016), Wesley Lemay Jr. Oct 2016

Perry V. Terrible Herbst, Inc., Nev. Adv. Op. 75 (Oct. 27, 2016), Wesley Lemay Jr.

Nevada Supreme Court Summaries

The Minimum Wage Amendment (MWA) of the Nevada Constitution does not have a specific statute of limitations provision. Because the MWA is closely analogous to recovery for back pay under NRS 608.260, the two-year statute of limitations provision in NRS 608.260 applies, and not the catch-all four-year period from NRS 11.220.

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Bowman V. State, 132 Nev. Adv. Op. 74 (Oct. 27, 2016), Marco Luna Oct 2016

Bowman V. State, 132 Nev. Adv. Op. 74 (Oct. 27, 2016), Marco Luna

Nevada Supreme Court Summaries

A district court's failure to provide a jury instruction prohibiting jurors from conducting independent research, investigations, or experiments in any criminal or civil case constitutes error. Though likely harmless, the resulting prejudice may constitute reversible error.

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Nev. Yellow Cab, Et Al., V. Eighth Jud. Dist. Ct., 132 Nev. Adv. Op. 77 (Oct. 27, 2016)., Beatriz Aguirre Oct 2016

Nev. Yellow Cab, Et Al., V. Eighth Jud. Dist. Ct., 132 Nev. Adv. Op. 77 (Oct. 27, 2016)., Beatriz Aguirre

Nevada Supreme Court Summaries

The Court, sitting en banc, considered a writ of mandamus challenging a district court order denying a motion dismiss and motion for summary judgment. The Court held that its previous decision in Thomas v. Nevada Yellow Cab Corp. applied retroactively. As a result, the Minimum Wage Amendment (the “Amendment”) to the Nevada Constitution passed by Nevada voters in 2006 included taxicab driver wages.

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Mona V. Eighth Jud. Dist. Ct., 132 Nev. Adv. Op. 72 (Sept. 29, 2016), William Nobriga Sep 2016

Mona V. Eighth Jud. Dist. Ct., 132 Nev. Adv. Op. 72 (Sept. 29, 2016), William Nobriga

Nevada Supreme Court Summaries

The Court concluded that an individual’s personal assets are not subject to discovery or execution merely because the individual also serves as the managing agent of a judgment debtor in a representative capacity.

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Johnson V. Wells Fargo Bank Nat’L Ass’N, 132 Nev. Adv. Op. 70 (September 29, 2016), Brittni Griffith Sep 2016

Johnson V. Wells Fargo Bank Nat’L Ass’N, 132 Nev. Adv. Op. 70 (September 29, 2016), Brittni Griffith

Nevada Supreme Court Summaries

The Court considered whether the Bank Secrecy Act prevents financial institutions from disclosing all investigative information in discovery to an adverse party. The Court held that the Bank Secrecy Act only precludes the disclosure of information relating to the existence of a suspicious activity report or the procedural nature of the suspicious activity report’s generation.

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Sindelar V. State, 132 Nev. Adv. Op. 68 (Sept. 29, 2016), Skyler Sullivan Sep 2016

Sindelar V. State, 132 Nev. Adv. Op. 68 (Sept. 29, 2016), Skyler Sullivan

Nevada Supreme Court Summaries

In Nevada, if a person is convicted three times within seven years for driving under the influence (DUI), the third conviction is a category B felony.2 The Court held that a felony DUI conviction in Utah, which occurs upon a person’s third DUI conviction within ten years, can be included as a past conviction in a later DUI offense in Nevada to make the offense a category B felony under NRS 484.410 because the conduct required to violate the Utah law is “the same or similar” as that required to violate the Nevada law.

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Schwartz V. Lopez, 132 Nev. Adv. Op. 73 (Sep. 29, 2016), Scott Cardenas Sep 2016

Schwartz V. Lopez, 132 Nev. Adv. Op. 73 (Sep. 29, 2016), Scott Cardenas

Nevada Supreme Court Summaries

The Court determined that (1) Article 11, Section 1 of the Nevada Constitution does not limit the Legislature’s discretion in encouraging other methods of education, and based on this, the Education Savings Account (“ESA”) program is not contrary to Article 11, Section 2 which requires the Legislature to “provide for a uniform system of common schools”; and that (2) the funds deposited in the education savings account are not “public funds” subject to Article 11, Section 10; and finally that (3) the ESA program violates the mandate under Section 2 and 6 to fund public education because SB 302 does …

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Davidson V. Davidson, 132 Nev. Adv. Op. 71 (Sept. 29, 2016), Hunter Davidson Sep 2016

Davidson V. Davidson, 132 Nev. Adv. Op. 71 (Sept. 29, 2016), Hunter Davidson

Nevada Supreme Court Summaries

The Court determined that: (1) the six-year statute of limitations in NRS 11.190(1)(a) applies to claims for enforcement of a property distribution provision in a divorce decree; and (2) the statute of limitations period in an action on a divorce decree commences “from the last transaction or the last item charged or last credit given.”

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Cashman Equipment Co. V. West Edna Assocs., 132 Nev. Adv. Op. 69 (Sep. 29, 2016), Andrew Hart Sep 2016

Cashman Equipment Co. V. West Edna Assocs., 132 Nev. Adv. Op. 69 (Sep. 29, 2016), Andrew Hart

Nevada Supreme Court Summaries

The Court determined that (1) NRS 108.2457(5)(e) precludes enforcement of an unconditional release from a bottom-tiered contractor to a higher-tiered contractor, when the higher-tiered contractor properly paid the middle-tiered contractor, but the middle-tiered contractor failed to pay the bottom-tiered contractor; and (2) that equitable fault analysis may not be used to reduce an award in a mechanic’s lien case.

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Manning V. State, 132 Nev. Adv. Op. 67 (September 15, 2016), Andrew Clark Sep 2016

Manning V. State, 132 Nev. Adv. Op. 67 (September 15, 2016), Andrew Clark

Nevada Supreme Court Summaries

A request for a jury instruction on a lesser-included offense is sufficient if there is any evidence the defendant can be convicted of the lesser crime. Failure to give such an instruction is reversible error. Further, although NRS 175.161(6) allows district courts to settle jury instructions in chambers, district courts should solicit written copies of proposed jury instructions to ensure a clear record on appeal.

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Mary Lou Cornella V. Churchill County, Et Al., 132 Nev. Adv. Op. 58 (August 12, 2016), Stephanie Glantz Aug 2016

Mary Lou Cornella V. Churchill County, Et Al., 132 Nev. Adv. Op. 58 (August 12, 2016), Stephanie Glantz

Nevada Supreme Court Summaries

No abstract provided.

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Kar V. Kar, 132 Nev. Adv. Op. 63 (August 12, 2016), Briana Martinez Aug 2016

Kar V. Kar, 132 Nev. Adv. Op. 63 (August 12, 2016), Briana Martinez

Nevada Supreme Court Summaries

The Court considered an appeal from a district court order denying a motion to modify child custody and support. The Court held that the district court lost exclusive, continuing jurisdiction when the parents and child left Nevada. However, this did not end the jurisdictional analysis. The district court should have considered whether it retained jurisdiction under NRS 125.315(2) and NRS 125.305.

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Bank Of Nevada V. Petersen, 132 Nev. Adv. Op. 64 (Aug. 12, 2016), Kristopher Kalkowski Aug 2016

Bank Of Nevada V. Petersen, 132 Nev. Adv. Op. 64 (Aug. 12, 2016), Kristopher Kalkowski

Nevada Supreme Court Summaries

No abstract provided.

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Washington V. State, 132 Nev. Adv. Op. 65 (Aug. 12, 2016), Elise Conlin Aug 2016

Washington V. State, 132 Nev. Adv. Op. 65 (Aug. 12, 2016), Elise Conlin

Nevada Supreme Court Summaries

The Court determined that 1) multiple convictions under NRS 202.285(1) are not redundant because the word discharges illustrates the legislature’s intent to separately punish each violation of the statute; 2) the State sufficiently proved beyond a reasonable doubt to the jury the charges against Washington; and 3) using the term “unnamed coconspirator” is allowed in a conspiracy charge and the identity of the unnamed does not need to be proven in order to charge other.

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Tower Homes V. Heaton, Nev. Adv. Op. 62, (Aug. 12, 2016), Sydney Campau Aug 2016

Tower Homes V. Heaton, Nev. Adv. Op. 62, (Aug. 12, 2016), Sydney Campau

Nevada Supreme Court Summaries

The Nevada Supreme Court determined that granting creditors control over a debtor’s legal malpractice claim and any proceeds resulting from the action constituted an improper assignment of a legal malpractice claim that was contrary to public policy.

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Mcnamara V. State, 132 Nev. Adv. Op. 60 (August 12, 2016), Annie Avery Aug 2016

Mcnamara V. State, 132 Nev. Adv. Op. 60 (August 12, 2016), Annie Avery

Nevada Supreme Court Summaries

The Court determined that (1) the state of Nevada has territorial jurisdiction under NRS 171.020 when a defendant has criminal intent and he or she performs any act in this state in furtherance of that criminal intent; (2) territorial jurisdiction is a question of law for the court, not a question of fact for the jury; (3) the State bears the burden of proving territorial jurisdiction by a preponderance of the evidence; and (4) omitting a lesser offense on a jury form is not a reversible error where the jury is properly instructed on the lesser offense.

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State V. Eighth Jud. Dist. Ct. (Schneider), 132 Nev. Adv. Op. 59 (Aug. 12, 2016), Ping Chang Aug 2016

State V. Eighth Jud. Dist. Ct. (Schneider), 132 Nev. Adv. Op. 59 (Aug. 12, 2016), Ping Chang

Nevada Supreme Court Summaries

The Court held that the district court abused its discretion when overturning a misdemeanor driving under the influence conviction by failing to consider the state’s evidence of the defendant’s guilt.

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Martinez-Hernandez V. The State Of Nevada, 132 Nev. Adv. Op. 61 (Aug. 12, 2016), Angela Lee Aug 2016

Martinez-Hernandez V. The State Of Nevada, 132 Nev. Adv. Op. 61 (Aug. 12, 2016), Angela Lee

Nevada Supreme Court Summaries

The Nevada Supreme Court determined that (1) if collateral consequences of a criminal conviction exist, a post-conviction petition for a writ of habeas corpus challenging the validity of a judgment of conviction, filed while imprisoned, is not moot once the petitioner is released, and (2) a criminal conviction creates a presumption that collateral consequences exist.

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Harrison V. Harrison, 132 Nev. Adv. Op. 56 (Jul. 28, 2016), Douglas H. Smith Jul 2016

Harrison V. Harrison, 132 Nev. Adv. Op. 56 (Jul. 28, 2016), Douglas H. Smith

Nevada Supreme Court Summaries

The Court held that a district court’s written order concerning the custody of two minor children did not violate public policy when its stipulations provided (1) that it was within the discretion of each minor child, after reaching the age of 14, to decide how much time to spend with either of their divorced parents as long as the original arrangement for joint physical custody remained intact, and (2) that a “parent coordinator” would be appointed to resolve disputes and whose role could be defined by a written district court order. Three justices dissented that the first provision encroaches on …

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Nationstar Mortg. V. Rodriguez, 132 Nev. Adv. Op. 55 (July 28, 2016), Patrick Caddick Jul 2016

Nationstar Mortg. V. Rodriguez, 132 Nev. Adv. Op. 55 (July 28, 2016), Patrick Caddick

Nevada Supreme Court Summaries

The subsequent discovery of fraud does not provide good cause for overcoming a default of the 30-day window in which to file a petition for judicial review of foreclosure mediation.

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Steve Dell Mcneill V. The State Of Nevada, 132 Nev. Adv. Op. 54 (July 28, 2016), Adrian Viesca Jul 2016

Steve Dell Mcneill V. The State Of Nevada, 132 Nev. Adv. Op. 54 (July 28, 2016), Adrian Viesca

Nevada Supreme Court Summaries

The Supreme Court determined that the plain language of NRS 213.1243 does not grant the State Board of Parole Commissioners authority to impose additional conditions not enumerated in the statute when supervising sex offenders on lifetime supervision.

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Humboldt Gen. Hosp. V. Sixth Jud. Dist. Ct., 132 Nev. Adv. Op. 53 (Jul. 28, 2016), Rob Schmidt Jul 2016

Humboldt Gen. Hosp. V. Sixth Jud. Dist. Ct., 132 Nev. Adv. Op. 53 (Jul. 28, 2016), Rob Schmidt

Nevada Supreme Court Summaries

The Court determined that allegations raising the scope of informed consent rather than the absence of consent to a medical procedure, even when pleaded as a battery action, constitute medical malpractice claims, and are subject to the NRS 41A.071 requirement for a medical expert affidavit.

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Khoury V. Seastrand, 132 Nev. Adv. Op. 52 (July 28, 2016), Ronni Boskovich Jul 2016

Khoury V. Seastrand, 132 Nev. Adv. Op. 52 (July 28, 2016), Ronni Boskovich

Nevada Supreme Court Summaries

The Court considered three consolidated appeals from a district court judgment, pursuant to a jury verdict, and post-judgment orders awarding costs and denying a new trial in a personal injury action. While the Court addressed numerous issues, the following three questions comprised the bulk of the consolidated appeals: (1) whether an attorney may ask prospective jurors questions concerning a specific verdict amount to determine potential bias or prejudice; (2) whether repeatedly asking questions about that specific amount results in jury indoctrination warranting a mistrial; and (3) when a district court abuses its discretion in dismissing jurors for cause under Jitnan …

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Blankenship V. State, 132 Nev. Ad. Op 50 (Jul. 21, 2016), Heather Armantrout Jul 2016

Blankenship V. State, 132 Nev. Ad. Op 50 (Jul. 21, 2016), Heather Armantrout

Nevada Supreme Court Summaries

The Court considered whether scoring errors in criminal defendants’ Probation Success Probability (PSP) forms constituted “impalpable or highly suspect evidence,” thereby adversely influencing the Division of Parole and Probation’s (the Division) sentencing recommendations. The Court affirmed one criminal defendant’s judgment of conviction (Docket No. 66118), but it vacated his sentence and remanded for a new sentencing hearing. It held that the district court abused its discretion and that defendant’s sentence was prejudiced because the district court relied on an erroneous PSP form in reaching its sentencing decision. It affirmed the judgment of conviction and sentence of another criminal defendant (Docket …

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