Written by Joe Tommasino, Esq.
Supreme Court of Nevada
Arbitration: Nevada Arbitration Rule (NAR) 19(C) bars a district court from setting aside a judgment confirming an arbitration award under Nevada Rule of Civil Procedure (NRCP) 60(b). Under NAR 19(C), a district court may grant post-judgment relief only to correct “clerical mistakes in judgments and errors therein arising from oversight or omission.” Clerical mistake is not an NRCP 60(b) ground for setting aside a judgment. Instead, clerical mistake is an NRCP 60(a) ground for correcting a judgment. NAR 19(C)’s language means that a court may fix a mistake or error in a judgment but not set aside a judgment entirely. Arce v. Sanchez, 138 Nev. Adv. Op. No. 83, _ P.3d (December 22, 2022).
Attorney disqualification: Nevada permits screening of nonlawyers as a means to cure the nonlawyer’s imputed conflict of interest. Here, petitioner challenged a district-court order denying her motion to disqualify real parties in interest’s law firm based on an alleged conflict of interest resulting from that firm hiring a paralegal who had previously worked for petitioner’s attorney. Petitioner argued that the facts, including that the paralegal worked on petitioner’s case while employed by petitioner’s attorney, required automatic disqualification and she did not need to show actual prejudice. On appeal, the Supreme Court of Nevada concluded that “automatic disqualification was not required despite the paralegal’s significant work on the case at the prior firm because petitioner failed to show any actual disclosure of confidences or ineffectiveness of the screening measures implemented by real parties in interest’s firm.” The district court acted within its discretion by denying the motion to disqualify. Because there were no specific factual or credibility disputes, no evidentiary hearing was required. Nelson v. Eighth Jud. Dist. Ct., 138 Nev. Adv. Op. No. 82, P.3d (December 22, 2022).
Criminal procedure: (1) Although prior bad acts generally cannot be admitted to show a defendant’s inclination to commit crimes, NRS 48.045(3) provides an exception to this general rule such that evidence of separate sexual offenses can be admitted to show a defendant’s propensity to commit sexual offenses; (2) in Franks v. State, 135 Nev. 1, 432 P.3d 752 (2019), the Supreme Court of Nevada outlined procedural safeguards a district court must follow prior to admitting evidence of a separate sexual offense under NRS 48.045(3), including the weighing of the evidence’s probative value against its prejudicial effect; and (3) here, the court clarified the mechanics of NRS 48.045(3). First, NRS 48.045(3) is applicable whenever a criminal defendant is charged with a sexual offense. Thus, the district court should consider only the charging document, and not the facts or evidence underlying the charge, in making its initial determination as to whether NRS 48.045(3) is implicated. Second, the district court must ensure that Franks procedural safeguards are followed before determining whether to admit evidence of a prior sexual offense under NRS 48.045(3). State v. Eighth Jud. Dist. Ct. (Doane), 138 Nev. Adv. Op. No. 90, P.3d (December 30, 2022).
Elections: (1) NRS 293.269927 provides that the registrar and his employees will conduct the signature-verification process for mail ballots; and (2) the statute contains no requirement that a board verify the signatures, nor is there any requirement that signature verification on mail-ballot returns be done by persons of different political parties. The Legislature has placed such express requirements in other statutes governing the election process, and it is for the Legislature to determine whether similar requirements are warranted for signature verification of mail ballots. Republican Nat’l Comm. v. Dist. Ct., 138 Nev. Adv. Op. No. 88, P.3d (December 29, 2022).
Judicial disqualification: (1) Pursuant to Nevada Code of Judicial Conduct (NCJC) 2.11(A)(6)(d), a judge does not “preside[ ]” over a matter, as that term is used in the disqualification rule, merely because a case was administratively assigned to a judge; and (2) to preside over a matter within the meaning of the rule, the judge must have exercised some control or authority over the matter in the lower court. While Justice Herndon technically was assigned to the case in district court, the relevant facts demonstrate that he took no action in it during the period of his assignment and did not “preside [ ]” over it in such a way that NCJC 2.11(A)(6)(d) mandates his disqualification. Taylor v. Brill, 138 Nev. Adv. Op. No. 81, P.3d (December 15, 2022).
Juvenile dependency: (1) NRS 432B.393(3)(c) relieves a child-welfare-services agency from its duty to provide reasonable efforts to reunify a child with his or her parent if a court finds that the parental rights of that parent were involuntarily terminated with respect to a sibling of the child; and (2) NRS 432B.393(3)(c), insofar as it relieves an agency of making reunification efforts, does not infringe on the fundamental liberty interest a parent has in the care and custody of his or her child and therefore does not violate due process. Parents are entitled to due-process protections before being deprived of the custody of their child or having their parental rights terminated. A finding under NRS 432B.393(3)(c), however, does not terminate parental rights or alter the custody of children. Rather, it relieves the agency from providing reunification efforts. Because NRS 432B.393(3)(c) does not infringe on a fundamental liberty interest, it cannot deprive any party of a fundamental liberty interest without due process of law, unless it violates substantive due process under the lenient rational-basis test. Since NRS 432B.393(3)(c) rationally relates to the legitimate interest that Nevada has in preventing the return of children to a dangerous home or from languishing too long in foster care, NRS 432B.393(3)(c) does not violate due process. Washoe Cty. Human Servs. v. Dist. Ct., 138 Nev. Adv. Op. No. 87, P.3d (December 29, 2022).
Legal malpractice: (1) Legal-malpractice claims that arise from legal advice given in the course of drafting an estate plan are transactional legal-malpractice claims; (2) while the statute of limitations set forth in NRS 11.207(1) applies to both transactional and litigation-based legal-malpractice claims, the litigation-malpractice tolling rule applies only to litigation-based legal malpractice claims, meaning claims that arise from legal representation during litigation; and (3) for transactional legal-malpractice claims, such an action accrues when the plaintiff suffers damages and discovers (or should have discovered) the material facts of the case. Here, appellant Lynita Nelson asked the Supreme Court of Nevada to determine that her legal- malpractice claim was neither strictly litigation-based nor transactional. The court determined that her claim was plainly transactional and therefore did not apply the litigation-malpractice tolling rule to it. Rather, the court determined that, under NRS 11.207(1), the statute of limitations on Lynita’s malpractice claim began to run when she retained independent counsel to review the legal documents that were the subject of her claim and thus sustained the expense of hiring such counsel to litigate the documents’ meaning. As she retained counsel more than two years before filing her malpractice claim, the claim is barred by the statute of limitations. Nelson v. Burr, 138 Nev. Adv. Op. No. 85, P.3d (December 29, 2022).
Nevada Constitution: A private right of action against state actors for retrospective monetary relief exists to enforce search-and-seizure rights under Article 1, Section 18 of the Nevada Constitution, but a qualified-immunity defense does not apply to such an action. Article 1, Section 18 of the Nevada Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers and effects against unreasonable seizures and searches.” The self-executing search-and-seizure provision of the Nevada Constitution contains a private cause of action to enforce its proscription, regardless of any affirmative legislative authorization, and a damages remedy remains essential to effectuate and advance the goals of Article I, Section 18. In addition, qualified immunity, a federally created doctrine, is not a defense to claims under Article 1, Section 18, in the absence of legislative authorization. As only the legislature may waive sovereign immunity of state actors, so too only the legislature may restore sovereign immunity to state actors. Mack v. Williams, 138 Nev. Adv. Op. No. 86, P.3d (December 29, 2022).
Nevada Public Records Act (NPRA): (1) Here, the Las Vegas Review-Journal (LVRJ) appealed from an order awarding it costs and attorney fees in proceedings under the NPRA but discounting the amount requested by almost 40%; and (2) the district court abused its discretion by imposing such a substantial discount without clearly explaining its reasoning. A district court enjoys wide discretion in determining what fees are reasonable to award. However, when the district court makes its award, it must explain how it came up with the amount. The district court should provide “a concise but clear explanation” of the reasoning behind its award amount. Where the difference between the lawyer’s request and the court’s award is relatively small, a somewhat cursory explanation will suffice. Where the disparity is larger, a more specific articulation of the court’s reasoning is expected. Such detail is needed for the prevailing party to object to-and the Supreme Court of Nevada to meaningfully review-the district court’s decision. L.V. Review-Journal v. Clark Cty. Coroner, 138 Nev. Adv. Op. No. 80, P.3d _ (December 15, 2022).
Personal jurisdiction: (1) This opinion concerns whether the effects test announced in Calder v. Jones, 465 U.S. 783 (1984), applies when determining whether a court has specific personal jurisdiction over a nonresident trustee sued in a trust-administration case; (2) the Supreme Court of Nevada concluded that “the effects test applies so long as the underlying claims sound in intentional tort, as they do here”; and (3) because the plaintiff in this case failed to provide prima facie evidence of the defendant trustee’s minimum contacts with Nevada, and any injury the plaintiff suffered in Nevada was not caused by the trustee’s contacts with Nevada, the district court erred in concluding that the trustee was subject to personal jurisdiction in Nevada. When a nonresident defendant challenges personal jurisdiction at the pleading stage, the plaintiff bears the burden of making a prima facie showing that personal jurisdiction is proper by producing some evidence in support of all facts necessary for a finding of personal jurisdiction. NRS 164.010(5)(b) provides a statutory basis for exercising personal jurisdiction over a nonresident trustee under certain circumstances. However, “[t]he Due Process Clause of the Fourteenth Amendment constrains a State’s authority to bind a nonresident defendant to a judgment of its courts” and requires that the nonresident has sufficient minimum contacts with the forum state. The district court may only exercise specific personal jurisdiction over a nonresident trustee under NRS 164.010(5)(b) if the statute’s requirements are satisfied and the plaintiff meets her burden under the Due Process Clause’s minimum-contacts analysis. There was no meaningful dispute as to NRS 164.010(5)(b)’s application here, so the dispositive issue was whether Margaret Burgauer met her burden to show that Steven Burgauer had sufficient minimum contacts with Nevada to allow relief to be granted against him. Courts apply this test to determine whether they may exercise specific personal jurisdiction over a defendant:
- The nonresident defendant must have purposefully availed himself of the privilege of acting in the forum state or purposefully directed his conduct to the forum state.
- The cause of action “must arise out of or relate to the defendant’s contacts’ with the forum.”
- The exercise of jurisdiction must be reasonable, meaning that it would not offend traditional notions of “fair play and substantial justice.”
Because the parties disputed whether purposeful-availment or purposeful-direction analysis applied to resolve the first factor of the minimum-contacts analysis, the Supreme Court of Nevada first addressed the proper analysis to apply. The court then turned to whether Margaret satisfied the minimum-contacts analysis. The Calder effects test is used to analyze the purposeful-direction prong of the minimum-contacts analysis. Most courts applying the effects test have limited its application to tort cases. Courts usually focus on traditional purposeful availment in cases involving contract claims. A petition like Margaret’s, seeking to remove a trustee for breach of fiduciary duties and a trust accounting and revision of the trust administration due to the trustee’s breaches, generally sounds in intentional tort. In similar circumstances, other courts have looked to the defendant’s purposeful direction as a measure to determine whether it has specific personal jurisdiction over the nonresident defendant by using the three-part Calder effects test. Thus, the Supreme Court of Nevada concluded that the effects test governed its inquiry into whether Steven purposefully directed activities to Nevada, such that the district court had specific personal jurisdiction over Steven. Under the effects test, purposeful direction is satisfied when the defendant “(1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum state.” The plaintiff’s contacts with the defendant and the forum are irrelevant. Instead, the inquiry “focuses on the relationship between the defendant, the forum, and the litigation, and ‘the defendant’s suit-related conduct,’ which ‘must create a substantial connection with the forum.’” Here, the district court erred when it concluded Steven had sufficient minimum contacts such that he was subject to the court’s specific personal jurisdiction. In re Tr. of Burgauer, 138 Nev. Adv. Op. No. 79, _ P.3d (December 15, 2022).
Trusts: (1) NRS 165.1207(1)(b)(5) does not provide a beneficiary whose only distribution interest in a trust is discretionary with a right to an accounting, and NRS 165.180 does not provide a district court with an independent basis on which to order an accounting; (2) whether a beneficiary has a right to an accounting under the terms of a trust turns principally on the language of the trust instrument itself, so as to give force to the grantor’s intent; (3) where a trust provides certain entitlements to “present” or “vested” beneficiaries, the construction of those terms should look to their definitions in the trust instrument first and foremost; in the absence of a specific definition, the construction should consider their usage in the instrument; and (4) a district court should provide sufficient specificity in its orders where it directs a trustee to take particular action with respect to the administration of a trust. Here, Nevada’s trust statutes-in particular NRS 165.1207-do not require the trustees to provide the beneficiaries with an accounting because the beneficiaries’ sole distribution interests are discretionary. However, because the beneficiaries constitute “present” and “vested” beneficiaries, as those terms are used in the trust, they may request and receive copies of certain trust instruments, may inspect the books of account and records of financial transactions, and on request, may receive an annual tax return, inventory, and accounting under the terms of the trust. Additionally, the district court ordered the trustees to provide the beneficiaries with copies of all sections of the trust document concerning the beneficiaries’ rights. The Supreme Court of Nevada agreed that neither Nevada statutes nor the trust instrument require the trustees to provide the beneficiaries with a copy of the entire trust instrument. The trustees did not show that the district court abused its discretion in ordering them to produce sections of the trust concerning the beneficiaries’ rights. However, the district court abused its discretion in failing to specify which sections must be provided. In re Tr. Agreement, 23 Partners Tr. I, 138 Nev. Adv. Op. No. 84, P.3d (December 22, 2022).
Trusts: NRS 163.002 and NRS 163.008 permit a settlor to create a trust as to real property via trust instrument, and a description of real property held in trust satisfies the statute of frauds if it can be identified through extrinsic or parol evidence. NRS 163.002 and NRS 163.008 govern the methods of creating, and evidentiary requirements for, trusts funded by real property. The heirs in this case argued that, to create a trust in relation to real property, the settlor must execute and record a formal deed conveying the property to the trust. They also argued in the alternative that if another type of written instrument can fund a trust with real property, the agreement must include a legal description of the property to comport with the statute of frauds. Regarding the first argument, the Supreme Court of Nevada concluded that “[p]ermitting the creation of a trust in relation to real property by declaration or transfer without requiring a separate deed serves ‘the longstanding objective of this court to give effect to a testator’s intentions to the greatest extent possible.’” “Good practice certainly calls for the use of additional formalities,” and self-represented settlors would benefit from specificity in the trust instrument. But revocable trusts make up an increasingly significant percentage of estate-planning tools used by unrepresented individuals, and formalities should not raise an unnecessary barrier to their desired estate disposition. Regarding the second argument, because California shares Nevada’s generous approach to the common-law statute of frauds regarding interests in land, and because Nevada’s statute-of-frauds jurisprudence has long reflected the pragmatism of common-law treatises, the Court held that “the description of real property held in trust satisfies the statute of frauds when it provides sufficient means to identify the property using extrinsic or parol evidence.” Here, a detailed description of the parcel was easily available through the county assessor, so the house in question was identifiable through extrinsic evidence, such that the common-law statute of frauds (as codified in NRS 111.205(1)) was satisfied. In re Tr. Agreement of Davies, 138 Nev. Adv. Op. No. 89, P.3d _ (December 29, 2022).
Resources
“Advance Opinions” are viewable at this link: http://nvcourts.gov/Supreme/Decisions/Advance_Opinions/
A list of “Forthcoming Opinions” is available at this link every Wednesday: http://nvcourts.gov/Supreme/Decisions/Forthcoming_Opinions/
“Supreme Court Unpublished Orders” are viewable at this link: http://nvcourts.gov/Supreme/Decisions/Unpublished_Orders/
“Court of Appeals Unpublished Orders” are viewable at this link: http://nvcourts.gov/Supreme/Decisions/Court_of_Appeals/Unpublished_Orders/
Joe Tommasino has served as Staff Attorney for the Las Vegas Justice Court since 1996. Joe is the President of the Nevada Association for Court Career Advancement (NACCA).