Civil Procedure Commons^™

Fraud On The Court And Abusive Discovery, David R. Hague

Nevada Law Journal

No abstract provided.

Nevada Dep’T Of Trans. V. Eighth Judicial Dist. Ct., 132 Nev. Adv. Op. 10 (Feb. 25, 2016), F. Shane Jackson

Nevada Supreme Court Summaries

The Court considered a petition for a writ of mandamus challenging a district court order denying a motion to dismiss. Petitioner Nevada Department of Transportation (“NDOT”) sought dismissal of a professional negligence claim filed against it on grounds that the complaint was not accompanied by an attorney affidavit and expert report as required by NRS 11.258, and when the court denied NDOT’s motion, it filed the instant petition. The Court denied the petition, holding that NDOT is not a design professional under NRS 11.2565(1)(a), and therefore the requirements of NRS 11.258 are inapplicable to NDOT since the action would not …

Shadow Wood Homeowners Association, Inc.; And Gogo Way Trust V. New York Community Bancorp, Inc. (January 28, 2016), Andrea Orwoll

Nevada Supreme Court Summaries

The Court reviewed an appeal from a district court order granting summary judgment to a bank that had lost a condominium in an HOA lien foreclosure sale. The Court held that despite statutory provisions, which seem prohibit overturning an HOA lien foreclosure sale if required recitals are present in the HOA’s trustee deed, there remains a common law power to overturn such foreclosure sales. The Court reaffirmed the principle that, where appropriate, Nevada courts may “grant equitable relief from a defective HOA lien foreclosure sale”—but only when there has been both 1) an inadequate price paid, and 2) fraud or …

Corp. Bishop, Lds V. Seventh Jud. Dist. Ct., 132 Nev. Adv. Op. 6 (Jan. 28, 2016), Mackenzie Warren

Nevada Supreme Court Summaries

The Court determined that a State Engineer did not improperly apply NRS § 533.3705(1) retroactively or constitute a retroactive application for two reasons: (1) the statute unambiguously applies to only approved applications; and (2) the applications at issue were approved almost five years after the statute took effect. Thus, the Court denied petitioner’s request for extraordinary writ attempting to bar the State Engineer from applying NRS § 533.3705(1) to the disputed water permit applications.

Braking The Rules: Why State Courts Should Not Replicate Amendments To The Federal Rules Of Civil Procedure, Stephen N. Subrin, Thomas O. Main

Scholarly Works

We have criticized the amendments to the Federal Rules of Civil Procedure since the 1980s and the procedural changes made by United States Supreme Court decisions during the same period. These amendments and changes, even if subtle and incremental, launched a new era—the Fourth Era in the grand history of American civil procedure. In this era, tragically, litigation is often perceived as a nuisance, trials are a mistake, and judicial case management is a catholicon. In this Article, we turn our attention to state court procedure. States could follow their federal counterparts; indeed, the pursuit of uniformity can be instinctive. …

Crossing The Line: Daubert, Dual Roles, And The Admissibility Of Forensic Mental Health Testimony, Sara Gordon

Scholarly Works

Psychiatrists and other mental health professionals often testify as forensic experts in civil commitment and criminal competency proceedings. When an individual clinician assumes both a treatment and a forensic role in the context of a single case, however, that clinician forms a dual relationship with the patient—a practice that creates a conflict of interest and violates professional ethical guidelines. The court, the parties, and the patient are all affected by this conflict and the biased testimony that may result from dual relationships. When providing forensic testimony, the mental health professional’s primary duty is to the court, not to the patient, …

Recentering Tribal Criminal Jurisdiction, Addie C. Rolnick

Scholarly Works

The boundaries of modern tribal criminal jurisdiction are defined by a handful of clear rules—such as a limit on sentence length and a categorical prohibition against prosecuting most non-Indians—and many grey areas in which neither Congress nor the Supreme Court has specifically addressed a particular question. This Article discusses five of the grey areas: whether tribes retain concurrent jurisdiction to prosecute major crimes, whether tribes affected by Public Law 280 retain concurrent jurisdiction to prosecute a full range of crimes, whether tribes may prosecute Indians who are not citizens of any tribe, whether tribes may prosecute their own citizens for …

Fergason V. Las Vegas Metropolitan Police Dept., 131 Nev. Adv. Op. 94 (Dec. 31, 2015), Lena Rieke

Nevada Supreme Court Summaries

The Court determined (1) the district court erred in granting summary judgment to the State because the State failed to present evidence demonstrating no genuine issue of material fact existed as to whether the funds it seized from petitioner’s bank accounts were subject to forfeiture as proceeds attributable to the petitioner’s commission of a felony; (2) the State’s forfeiture of funds seized from a bank account will not stand without evidence connecting the funds to criminal activity; and (3) NRS § 179.1173(4) requires the State to prove by clear and convincing evidence the property is subject to forfeiture.

The Court …

Gonzalez V. State, 131 Nev. Adv. Op. 99 (Dec. 31, 2015), Chelsea Stacey

Nevada Supreme Court Summaries

The Court, sitting en banc, determined that by failing to answer questions from the jury that suggested confusion on a significant element of the law, failing to give an accomplice-distrust instruction, and by not bifurcating the guilt phase from the gang enhancement phase the district court violated the defendant’s right to a fair trial.

Scott V. First Jud. Dist. Ct., 131 Nev. Adv. Op. 101 (Dec. 31, 2015), Adrian Viesca

Nevada Supreme Court Summaries

The Court determined that Carson City Municipal Code (“CCMC”) 8.04.050(1) is (1) unconstitutionally overbroad because it “is not narrowly tailored to prohibit only disorderly conduct or fighting words” and (2) vague because it lacked sufficient guidelines and gave the police too much discretion in its enforcement.

In Re P.S., 131 Nev. Adv. Op. 95 (Dec. 24, 2015), Rob Schmidt

Nevada Supreme Court Summaries

The Supreme Court of Nevada held that under NRS § 62B.030 the district court has discretion over whether to conduct a hearing de novo after reviewing the recommendations of a master of the juvenile court when timely requested.

Harrison V. Roitman, 131 Nev. Adv. Op. 92 (Dec. 17, 2015), Michael Coggeshall

Nevada Supreme Court Summaries

The Court determined that absolute immunity applies to party-retained expert witnesses as well as court appointed witnesses. Party-retained expert witnesses have absolute immunity from suits for damages arising from statements made in the course of judicial proceedings.

State, Emp’T. Sec. Div. V. Murphy, 132 Nev. Adv. Op. 18 (Dec. 17, 2015), Michael Coggeshall

Nevada Supreme Court Summaries

The Court determined that employees who are terminated from employment for absence due to incarceration, and are later convicted of a crime, are not eligible for unemployment benefits. These employees are contrasted with those who are incarcerated, but remained incarcerated due to indigence, or were not convicted due to unsupported charges. The latter group may be eligible for unemployment benefits.

Mcdonald Carano Wilson, Llp. V. Bourassa Law Group, 131 Nev. Adv. Op. 90 (December 3, 2015), Patrick Caddick

Nevada Supreme Court Summaries

The Court considered an appeal from a district court order. The Court reversed and remanded the district court’s ruling that NRS § 18.015 does not allow an attorney to enforce a charging lien when the attorney withdrew from representation.

Helfstein V. Eighth Jud. Dist. Ct., 131 Nev. Adv. Op. 91 (Dec. 3, 2015), Heather Caliguire

Nevada Supreme Court Summaries

The Nevada Supreme Court determined that the six-month deadline to set aside a voluntary dismissal or settlement agreement found within NRCP 60(b) could not be extended, despite an allegation of fraud.

In Re Guardianship Of Hailu, 131 Nev. Adv. Op. 89 (Nov. 16, 2015), Adrienne Brantley

Nevada Supreme Court Summaries

The Court determined that under NRS § 451.007 (the Uniform Determination of Death Act) the District court failed to consider whether the American Association of Neurology (AAN) guidelines adequately measure all functions of the entire brain and whether the guidelines are considered accepted medical standards by states that have adopted the Act.

Wph Architecture, Inc. V. Vegas Vp, Lp., 131 Nev. Adv. Op. 88 (Nov. 5, 2015), Emily Dyer

Nevada Supreme Court Summaries

The Court determined that (1) NRCP 68, NRS § 17.115, and NRS § 18.020, which allow costs and fees to be awarded in several types of district court cases, do not require an arbitrator to award fees and costs after an offer of judgment has been made; and (2) NRCP 68, NRS § 17.115, and NRS § 18.020 are substantive in their application to arbitration proceedings.

D.R. Horton, Inc. V. Eighth Jud. Dist. Ct, 131 Nev., Adv. Op. 86 (October 29, 2015), Brandonn Grossman

Nevada Supreme Court Summaries

The Nevada Supreme Court considered a Petitioner home builder’s petition for writ relief and appeal of a district court order granting Respondent HOA’s ex parte motion for a stay and enlargement of time for service pursuant to NRS 40.647(2)(b). Ruling on Petitioner’s two writ petitions, the Court held the district court’s grant of a stay was not in error and the NRCP 41(e) five-year limitation period was tolled under the Boren exception to NRCP 41(e). Accordingly, the Court denied both writ petitions.

Eureka Cnty. V. Off. Of State Engr. Of State Of Nev., Div. Of Water Resources, 131 Nev. Adv. Op. 84 (Oct. 29, 2015), Chelsea Finnegan

Nevada Supreme Court Summaries

For the State Engineer to grant water rights applications, there must be evidence to support the decision and the new rights must not substantially conflict with existing rights. On appeal from the District Court, the Court found no evidence to support the granted application, and held the use of Respondent’s rights would severely impact the water table. The Court reversed and remanded the case for proceedings consistent with the opinion.

Okada V. Eighth Judicial Dist. Ct., 131 Nev. Adv. Op. 83 (Oct. 15, 2015), Baylie Hellman

Nevada Supreme Court Summaries

The Court determined that (1) NRCP 30 generally governs the taking of depositions but does not set restrictions as to where the deposition must take place; and (2) while NRCP 30 generally limits depositions to “1 day of 7 hours,”NRCP 26(b)(2) sets for general considerations that district courts should take into account when determining whether the length of a depositions should deviate from the presumption one-day time frame.

Michaels V. Pentair Water Pool & Spa, Inc., 131 Nev. Adv. Op. 81 (Oct. 1, 2015), F. Shane Jackson

Nevada Supreme Court Summaries

The Court of Appeals considered an appeal from a district court order denying the plaintiff’s post-trial motion for a new trial, which alleged that the defendant’s attorney committed misconduct during closing arguments at trial. The Court held that the district court failed to make the detailed findings required by the Nevada Supreme Court for claims of attorney misconduct and remanded the case for the district court to reconsider the matter and make the necessary findings.

Joanna T. V. Nevada, 131 Nev. Adv. Op. 77 (Sep 24, 2015), Audra Powell

Nevada Supreme Court Summaries

The court considered whether NRCP 4(i)’s 120 day requirement for service of a summons applied to cases filed under NRS § 432B, for protection of children from neglect and abuse. The court held that the 120 day requirement does not apply to cases filed under 432B and denied the petition for a writ of mandamus to order the juvenile court to dismiss an abuse-and-neglect petition on that premise.

Watson Rounds V. Eighth Jud. Dist. Ct., 131 Nev. Adv. Op. 79 (Sept. 24, 2015), Lena Rieke

Nevada Supreme Court Summaries

NRS 7.085 allows a district court to make an attorney personally liable for the attorney fees and costs an opponent incurs when the attorney files, maintains or defends a civil action that is not well-grounded in fact or is not warranted by existing law or by a good faith argument for changing the existing law. The Court considered (1) whether NRCP 11 supersedes NRS 7.085 in sanctioning a law firm and (2) whether the district court abused its discretion in sanctioning the law firm under under NRS 7.085. The Court held NRCP 11 does not supersede NRS § 7.085 because …

William Nathan Baxter V. Dignity Health, Et Al, 131 Nev. Adv. Op. 76 (September 24, 2015), Andrea Orwoll

Nevada Supreme Court Summaries

The Court considered an appeal from a district court order dismissing a medical malpractice complaint. The Court held that because NRS § 41A.071 creates threshold requirements for bringing medical malpractice suits, it must be construed consistently with the liberal pleading requirements. The Court reversed and remanded.

In Re Guardianship Of N.M., 131 Nev. Adv. Op. 75 (September 24, 2015), Daniel Ormsby

Nevada Supreme Court Summaries

The Court heard an appeal from a parent-appellant challenging a district court’s exercise of temporary emergency jurisdiction to appoint a temporary, non-parent, guardian and general, non-parent, guardian. Affirmed.

Bergenfield V. Bac Home Loans Servicing, 131 Nev. Adv. Op. 68 (Sep. 10, 2015), Chelsea Stacey

Nevada Supreme Court Summaries

The Court held that when a district court dismisses a complaint but gives the plaintiff leave to amend the order it is not a final appealable judgment. In order for it to be a final appealable judgment, a plaintiff must give the district court written notice within 30 days that the plaintiff will not amend the complaint so the district court may enter a final, appealable order.

Barbara Ann Hollier Trust V. Shack, 131 Nev. Adv. Op. 59 (August 6, 2015), Patrick Phippen

Nevada Supreme Court Summaries

On an issue of first impression, the Nevada Supreme Court held that the filing of a post-judgement motion which tolls the time to appeal also tolls NRCP 54(d)(2)(B)’s 20-day deadline to move for attorney fees. The Court further concluded that (a) the $100,000 offset in Hollier’s favor was not extinguished by the Court’s previous order and (b) only Acadian Realty is liable for attorney fees.

Sanders V. Sears-Page, 131 Nev. Adv. Op. 50, Scott Lundy

Nevada Supreme Court Summaries

The Court held that the district court erred in deciding not to strike an empaneled juror whose background implied bias, but who promised he could remain impartial. Moreover, the Court held the district court erred in allowing challenges for cause while the juror was present, and by allowing newly discovered evidence to be entered into evidence on the final day of trial.

Summary Of State V. Beaudion, 131 Nev. Adv. Op. No. 48 (Jul. 2, 2015), Michael S. Valiente

Nevada Supreme Court Summaries

NRS 172.241 affords the target of a grand jury investigation the opportunity to testify before them unless, after holding “a closed hearing on the matter,” the district court determines that adequate cause exists to withhold target notice. NRS 172.241(3) specifies that “[t]he district attorney may apply to the court for a determination that adequate cause exists to withhold notice, if the district attorney.... [d]etermines” that the target poses a flight risk, cannot be located or, as relevant here, “that the notice may endanger the life or property of other persons.” Accordingly, NRS 172.241’s procedure for withholding notice is met if …

Summary Of Biscay V. Mgm Resorts Int’L., 131 Nev. Adv. Op. 46 (July 2, 2015), Patrick Phippen

Nevada Supreme Court Summaries

The Court concluded dismissal is not proper under NRS 18.130(4) when a non-resident plaintiff files security with the court clerk for the defendant’s costs when the required security is filed any time prior to the action being dismissed.