Nevada Appellate Court Summaries (1-5-24)

Check out the summaries of opinions from the Nevada Appellate Courts written by Joe Tommasino, Esq.

Written by Joe Tommasino, Esq.

Supreme Court of Nevada

Default: In default proceedings, a defaulting party cannot be found to have impliedly consented to try a claim under NRCP 15(b)(2) if the claim was not pleaded in the complaint, even for a clearly established cause of action. NRCP 15(b)(2) provides that when an issue that is not raised in the complaint is “tried by the parties’ express or implied consent, it must be treated in all respects as if raised in the pleadings.” An amendment by implied consent is permissible “if prejudice does not result.” Generally, a default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings. Accordingly, a party should have the right to assume that a court’s judgment following his default will not extend beyond the issues presented by the complaint. Separately, the Supreme Court of Nevada explained that when a text message’s admissibility is objected to on authentication grounds, the proponent of such evidence must explain the purpose for which they are offering the text message and provide sufficient direct or circumstantial corroborating evidence of its authorship. Thus, some additional evidence, which tends to corroborate the identity of the sender, is required. This evidence may include the context or content of the messages themselves. Finally, while conversion may be established by the refusal of a demand for the property, a demand for return of converted property is not required when the holder of the property asserts ownership. Thus, when property is unlawfully obtained through duress, no demand is required. Blige v. Terry, 139 Nev. Adv. Op. No. 60, ___ P.3d ___ (December 28, 2023).

Evidence: The balancing test for propensity evidence of other sexual offenses admissible under NRS 48.045(3) does not apply to the admission of other-act evidence concerning identity or intent under NRS 48.045(2). Parties must make clear the specific bases for admission of other-act evidence under Petrocelli v. State, 101 Nev. 46 (1985), and NRS 48.045(2). The court, after an evidentiary hearing, must determine whether any of those bases apply, being careful to analyze the foundation for each basis. Courts must take care not to mix the Franks v. State, 135 Nev. 1 (2019), and Petrocelli analyses, as the tests, instructions, and use of evidence differ for other-act evidence and other-sexual-offense evidence. Any limiting instruction given regarding the admission of other-act evidence must specify only the bases determined by the court. Additionally, a district court must engage in a thorough analysis under Hallmark v. Eldridge, 124 Nev. 492 (2008), either in writing or on the record, when a party has challenged the qualifications of an expert. The Supreme Court of Nevada also confirmed that “a witness plotting known coordinates on a map does not require expert testimony.” Dickey v. State, 140 Nev. Adv. Op. No. 2, ___ P.3d ___ (January 4, 2024).

Guardian ad litem (GAL): (1) The protected person waived any argument pertaining to the form of the district court’s order by failing to raise the issue below, and the district court’s failure to specify the GAL’s fee rate in the order did not prejudice the protected person; (2) the district court erred in interpreting NRS 159.0455(3) as requiring the court to appoint an attorney where there is no court-approved volunteer program, but this error was harmless because the district court expressly appointed an experienced attorney as the GAL due to the case’s complexity; and (3) substantial evidence supports the GAL’s fee request. Regarding the GAL’s fees, NRS 159.344 requires a court to determine the nature of the services performed in awarding compensation: it distinguishes between “services that require an attorney[,]” which may be compensated at an attorney rate, and “fiduciary services,” which may be compensated at a fiduciary rate. A fiduciary relationship is one “between two persons when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation[ship].” The Supreme Court of Nevada concluded that the relationship between GALs and protected persons is fiduciary in nature. GALs are not presumptively entitled to “attorney fees” because they do not act as attorneys on behalf of the protected person; however, if they perform the type of services performed by attorneys and have commensurate experience as an attorney, GALs may be compensated at an attorney rate for their work. This conclusion accords with Rule 8(J) of the Nevada Statewide Rules for Guardianship (NSRG) which requires courts to analyze the work completed by the GAL and their particular expertise and experience. When determining fees for a GAL, courts should evaluate enumerated factors such as “[t]he experience and qualifications of the GAL” and “[t]he nature and complexity of the work of the GAL.” In re: Guardianship of Jones, 139 Nev. Adv. Op. No. 57, ___ P.3d ___ (December 21, 2023).

Medical malpractice: (1) Informed-consent evidence is inadmissible, and an assumption-of-the-risk defense is improper, in professional-negligence suits when the plaintiff does not challenge consent, as it serves only to confuse and mislead the jury; (2) expert or physician testimony is not required to demonstrate the reasonableness of the billing amount of special damages; and (3) evidence of insurance write-downs does not fall within the type of evidence NRS 42.021(1) makes admissible. To succeed in a professional-negligence action, a plaintiff must prove that, in rendering services, a health care provider failed “to use the reasonable care, skill or knowledge ordinarily used under similar circumstances by similarly trained and experienced providers of health care.” The plaintiff must establish three things:

(1) The doctor’s conduct departed from the accepted standard of medical care or practice;

(2) The doctor’s conduct was both the actual and proximate cause of the plaintiff’s injury; and

(3) The plaintiff suffered damages.

Generally, the first two elements of such an action—deviation from the standard of care and medical causation—are shown by evidence consisting of “expert medical testimony, material from recognized medical texts or treatises or the regulations of the licensed medical facility wherein the alleged negligence occurred.” An assumption-of-the-risk defense, on the other hand, requires proof of “(1) voluntary exposure to danger, and (2) actual knowledge of the risk assumed.” As the defense is founded on the theory of consent, a party may seek to present evidence of a plaintiff’s informed consent to support it. However, such evidence and argument is irrelevant to demonstrating that a medical provider conformed to the accepted standard of care or to refute medical causation when defending against a medical-malpractice claim. Indeed, informed consent evidence “does not make it more or less probable that the physician was negligent in… performing [the surgery] in the post-consent timeframe” and is therefore inadmissible to determine whether a medical professional breached the standard of care. Even if a plaintiff gave informed consent, that would not vitiate a medical provider’s duty to provide treatment according to the ordinary standard of care because assent to treatment does not amount to consent to negligence, regardless of the enumerated risks and complications of which the patient was made aware. Taylor v. Brill, 139 Nev. Adv. Op. No. 56, ___ P.3d ___ (December 21, 2023).

Offers of judgment: An offer of judgment that explicitly excludes costs, expenses, interest, and attorney fees promises two sums of money if accepted: (1) the principal amount for the claim(s), which is specifically identified in the offer of judgment; and (2) a separate amount for recoverable costs, expenses, interest, and attorney fees. Under NRCP 68(d)(2), an offeror who drafts one of these exclusive offers cannot obtain dismissal unless the offer is accepted and the offeror pays both the principal offer and, if the parties agree or the offeree establishes that they would otherwise be legally recoverable, an additional allowance for costs, expenses, interest, and attorney fees. In the instant case, Lucky Cab drafted an exclusive offer when it conveyed an offer of judgment for $150,001, as it specified that that “amount excludes prejudgment interest, attorney’s fees and all costs incurred to date.” By this explicit language, the $150,001 amount excluded and made no provision for prejudgment interest, attorney fees, and costs. Aguilar was therefore permitted to accept the $150,001 and expect an additional payment of pre-offer costs and interest that would be recoverable had a judgment been entered. Aguilar v. Lucky Cab Co., 140 Nev. Adv. Op. No. 1, ___ P.3d ___ (January 4, 2024).

Traffic stops: A license-plate frame does not constitute “foreign materials” within the meaning of NRS 482.275(4), and a license plate is “clearly legible” if the required registration information is readily identifiable. To hold otherwise would effectively ban license-plate frames. Such an outcome would promote discretionary law enforcement and potentially subject otherwise law-abiding motorists to arbitrary or, as here, pretextual traffic stops. Here, the district court erred in denying the defendant’s motion to suppress evidence obtained during the traffic stop because there was no probable cause to support the stop based on a violation of NRS 482.275(4). The Supreme Court of Nevada noted that “a license plate frame covering optional phrases imprinted on standard or specialty license plates does not violate NRS 482.275(4).” McCord (David) v. State, 139 Nev. Adv. Op. No. 59, ___ P.3d ___ (December 28, 2023).

Nevada Court of Appeals

Criminal procedure: (1) A defendant may abandon an unequivocal request for self-representation where the district court did not conclusively deny the request; and (2) the totality of the circumstances must be considered in determining whether a defendant has actually abandoned such a request. Some jurisdictions look to the totality of circumstances to determine whether a defendant has abandoned their request for self-representation. The Arizona Court of Appeals adopted this approach and considers these factors:

(1) The defendant’s opportunities to remind the court of a pending motion;

(2) Defense counsel’s awareness of the motion;

(3) Any affirmative conduct by the defendant that would run counter to a desire for self-representation;

(4) Whether the defendant waited until after conviction to complain;

(5) The defendant’s experience in the criminal-justice system and with waiving counsel; and

(6) Whether there was a relatively short period of time between the request and subsequent hearings, such that the defendant did not have time to forget the request.

The Court of Appeals approved these factors in order to determine whether a defendant has abandoned their request for self-representation. Sims v. State, 139 Nev. Adv. Op. No. 55, ___ P.3d ___ (December 7, 2023).

Professional negligence: (1) Complaints for professional negligence must be timely filed within the applicable statute-of-limitations period and must be supported by an affidavit of merit; and (2) an affidavit of merit need not opine as to the element of causation to support a professional-negligence-based wrongful death claim under NRS 41A.071. The Court of Appeals also concluded that the evidence in this case did not irrefutably demonstrate that the appellant discovered or should have discovered the legal injury more than a year before the filing of the complaint. Therefore, the survivorship claims should not have been dismissed as untimely as a matter of law. Moreover, the complaint adequately pleaded wrongful-death claims based on professional negligence and was timely filed within one year of the decedent’s death. Although the district court found the attached affidavit of merit deficient because it did not opine as to the cause of the decedent’s death, the affidavit was not required to address causation and adequately supported the allegations of professional negligence for purposes of NRS 41A.071. Engelson v. Dignity Health, 139 Nev. Adv. Op. No. 58, ___ P.3d ___ (December 28, 2023).


About the author

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).

About the article

© 2024 Clark County Bar Association (CCBA). All rights reserved. No reproduction of any portion of this issue is allowed without written permission from the publisher. Editorial policy available upon request.

This article was originally submitted for publication in the Communiqué (Feb. 2024), the official publication of the Clark County Bar Association. See https://clarkcountybar.org/about/member-benefits/communique-2024/communique-feb-2024/.

The articles and advertisements appearing in Communiqué magazine do not necessarily reflect the opinion of the CCBA, the CCBA Publications Committee, the editorial board, or the other authors. All legal and other issues discussed are not for the purpose of answering specific legal questions. Attorneys and others are strongly advised to independently research all issues.

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