Nevada Appellate Court Summaries (1-6-21)

By Joe Tommasino, Esq.

Supreme Court of Nevada

Anti-SLAPP protections: (1) Appellant Michael Kosor met his prima facie burden to demonstrate that the statements in question were all made in public forums on a matter of public interest; and (2) on remand, the district court must consider whether Kosor made his communications in “good faith.” This case arises in the context of Nevada’s anti-SLAPP protections, which appellant Michael Kosor says apply to his vociferous criticisms of the homeowners’ association and developers/managers of the residential community of Southern Highlands in Clark County. Respondents, Olympia Companies, LLC, and its president and CEO, Garry V. Goett (collectively, Olympia)—said developers/managers—bore the brunt of those criticisms, which Kosor voiced at open meetings of the homeowners’ association, distributed in a pamphlet and letter supporting his campaign for a seat on the homeowners’ association board, and posted online. Accordingly, Olympia sued Kosor for defamation. On appeal, the Supreme Court of Nevada concluded that each of Kosor’s statements was “made in direct connection with an issue of public interest in a place open to the public or in a public forum.” Kosor, Jr. v. Olympia Co.’s, LLC, 136 Nev. Adv. Op. No. 83, ___ P.3d ___ (December 31, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Civil rights: (1) Title IX’s protections against sex-based discrimination extend to prohibit discrimination against homosexual and transgender individuals, as well as discrimination based on perceived sexual orientation; and (2) although a state-law violation is a factor in determining deliberate indifference, it does not constitute per se deliberate indifference under federal law. Title IX is a federal civil-rights law that provides the following: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” The first requirement for imposing Title IX liability is that the harassment be “on the basis of sex.” Here, the harassment at issue fell within the purview of Title IX because Title IX’s prohibition of discrimination “on the basis of sex” encompasses discrimination against homosexual or transgender individuals. Harassment based upon perceived sexual orientation also falls under Title IX, as in both situations the perpetrator’s view of the victim’s sexual orientation is a factor motivating the harassment. Regarding the requirement of deliberate indifference, the Supreme Court of Nevada held that negligence is not enough, and the mere violation of a regulation, policy, or state statute is not per se deliberate indifference. Title IX damages are appropriate only where the plaintiff shows an official decision not to remedy the violation. Clark Cty. School Dist. V. Bryan C/W 74566, 136 Nev. Adv. Op. No. 82, ___ P.3d ___ (December 24, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Criminal procedure: Because a fine is a form of punishment, a defendant must be informed of any mandatory minimum, as well as the maximum fine, in order to be fully informed of the direct consequences of a plea. Although a defendant does not necessarily need to be informed during the district court’s plea canvass of the consequences of his or her plea, “it must affirmatively appear, somewhere in the record,” that he or she was so informed. When a defendant believes a nominal fine is possible when, in fact, a substantial fine is required, he or she clearly does not know the actual range of punishment that could be imposed. Thus, “where there is a range of punishments—by fine or by imprisonment—the defendant must be informed of both the floor and ceiling of that range in order to make a knowing and voluntary decision.” Banka (Jack) v. State, 136 Nev. Adv. Op. No. 81, ___ P.3d ___ (December 10, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Divorce: Generally, a district court may not independently investigate facts in a pending matter by communicating ex parte with another court without giving the parties an opportunity to respond. In this opinion, the Supreme Court of Nevada addressed the “first-to-file” rule which is a “generally recognized doctrine of federal comity which permits a district court to decline jurisdiction over an action when a complaint involving the same parties and issues has already been filed in another district.” Although the doctrine was originally developed in federal court, state courts have also applied it. The rule is grounded in principles of efficiency and judicial administration. Courts have consistently emphasized that the rule is equitable in nature, that it must not be applied mechanically, and that “an ample degree of discretion . . . must be left to the lower courts.” The Ninth Circuit set forth a three-step test for the rule in Alltrade, Inc. v. Uniweld Products, Inc., 946 F.2d 622 (9th Cir. 1991), which the Supreme Court adopted in this opinion The three steps are as follows:

(1) Does the rule apply in the first instance?

(2) If so, is there some equitable reason not to apply the rule?

(3) Finally, if the rule applies, should the second-filed suit be dismissed or merely stayed?

Here, the Supreme Court concluded that where the same action is filed in two courts, and a party contests the first court’s jurisdiction, the second court should ordinarily stay the action, to permit the first court to decide the issue of its own jurisdiction. A stay gives appropriate deference to the first court, while ensuring a more efficient transition back to the second court should the first court turn out to lack jurisdiction. District courts have equitable authority to treat unusual cases differently, but no special circumstances existed in this case. Mesi v. Mesi, 136 Nev. Adv. Op. No. 89, ___ P.3d ___ (December 31, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Evidence: (1) A jury convicted appellant Thomas Randolph of conspiring with a hitman to have his sixth wife murdered during a staged burglary and then murdering the hitman; (2) in this appeal, the Supreme Court of Nevada considered whether the events surrounding the death of Randolph’s second wife were admissible under NRS 48.045(2), which provides that evidence of other bad acts is inadmissible unless offered to prove something other than the defendant’s criminal propensity; and (3) because the danger of unfair prejudice substantially outweighed any probative value, the district court abused its discretion in admitting the prior-bad-act evidence. Evidence of other crimes, wrongs, or acts is prohibited to prove a person’s character or propensity to act in conformity with a character trait. However, such evidence may “be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” The proponent of prior-bad-act evidence must request a hearing and establish that:

(1) the prior bad act is relevant to the crime charged and for a purpose other than proving the defendant’s propensity,

(2) the act is proven by clear and convincing evidence, and

(3) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.

Here, because the State’s only offer of proof was made through a witness with limited firsthand knowledge, the district court abused its discretion in finding that the prior bad acts were proven by clear and convincing evidence based on the State’s offer of proof made by this witness. Separately, the Court found that the district court improperly allowed the State’s witnesses to testify to irrelevant and prejudicial facts related to other events. A presumption of inadmissibility attaches to prior-bad- act evidence. The presumption of inadmissibility guards against unfair prejudice that may undermine an accused’s right to a fair trial by enticing jurors to resolve a case based on emotion, sympathy, or another improper reason. In assessing “unfair prejudice,” the Court looks to the basis for the admission of prior-bad-act evidence and the use to which the evidence was actually put. When balancing probative value against the danger of unfair prejudice, courts consider a variety of factors, including

(1) the strength of the evidence as to the commission of the other crime,

(2) the similarities between the crimes,

(3) the interval of time that has elapsed between the crimes,

(4) the need for the evidence,

(5) the efficacy of alternative proof, and

(6) the degree to which the evidence probably will rouse the jury to overmastering hostility.

Here, the Court found that the evidence presented only served to show the jury that Randolph is deceitful and violent. The jury was inundated with evidence of Randolph’s bad character, and the danger of unfair prejudice substantially outweighed any probative value of the specific evidence at issue. Randolph (Thomas) v. State (Death Penalty-Direct), 136 Nev. Adv. Op. No. 78, ___ P.3d ___ (December 10, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Foreclosure: In this appeal involving the effect of conclusive deed recitals pursuant to NRS 116.31166 on title disputes after a homeowners’ association (HOA) lien foreclosure sale. The Supreme Court of Nevada held that (1) a valid pre-sale superpriority tender preserves the original deed of trust by operation of law, and (2) the district court may find that a valid pre-sale tender preserved the original deed of trust, despite NRS 116.31166 conclusive recitals of default in a foreclosure deed. While a court’s authority to look beyond a foreclosure deed in a quiet-title action is an inherent equitable power, a valid tender cures a default “by operation of law”—that is, without regard to equitable considerations. Saticoy Bay, LLC Ser. 133 McLaren v. Green Tree Serv. LLC, 136 Nev. Adv. Op. No. 85, ___ P.3d ___ (December 31, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Judicial estoppel: A district court considering whether to apply the doctrine of judicial estoppel should first consider the factors from In re Frei Irrevocable Trust Dated Oct. 29, 1996, 133 Nev. 50, 56, 390 P.3d 646, 652 (2017), before considering whether a party sufficiently raised a defense to the application of the doctrine. Judicial estoppel prevents a party from stating a position in one proceeding that is contrary to his or her position in a previous proceeding. Caselaw sets forth a five-factor test for courts to consider when determining whether judicial estoppel applies: whether

(1) the same party has taken two positions;

(2) the positions were taken in judicial or quasi-judicial administrative proceedings;

(3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true);

(4) the two positions are totally inconsistent; and

(5) the first position was not taken as a result of ignorance, fraud, or mistake.

Although a district court’s decision to apply judicial estoppel is discretionary, “judicial estoppel should be applied only when a party’s inconsistent position arises from intentional wrongdoing or an attempt to obtain an unfair advantage” (emphasis added). A party seeking application of this doctrine must therefore show that “the first position was not taken as a result of ignorance, fraud, or mistake.” Here, the Supreme Court of Nevada made clear that after considering and making findings concerning the five factors and determining that judicial estoppel applies, district courts can then determine whether defenses such as duress or coercion preclude application of the doctrine. Kaur v. Singh, 136 Nev. Adv. Op. No. 77, ___ P.3d ___ (December 10, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Mandamus: “Extraordinary relief should be extraordinary,” and while the facts underlying this petition are unfortunate, there is nothing in the resulting interlocutory district-court decision challenged here which clears that “extraordinary” bar. The chief requisites of a petition to warrant the issuance of a traditional writ of mandamus are as follows:

(1) The petitioner must show a legal right to have the act done which is sought by the writ;

(2) it must appear that the act which is to be enforced by the mandate is that which it is the plain legal duty of the respondent to perform, without discretion on his part either to do or refuse;

(3) the petitioner must show that the writ will be availing as a remedy; and

(4) the petitioner must have no other plain, speedy, and adequate remedy.

Traditional mandamus relief does not lie where a discretionary lower-court decision “result[s] from a mere error in judgment”; instead, mandamus is available only where “the law is overridden or misapplied, or when the judgment exercised is manifestly unreasonable or the result of partiality, prejudice, bias or ill will.” Because mandamus is an extraordinary remedy, the Supreme Court does not typically employ it where ordinary means, already afforded by law, permit correction of alleged errors. Separately, the Court recognized that it has alternatively granted mandamus relief where a petitioner presented legal issues of statewide importance requiring clarification, and the decision promoted judicial economy and administration by assisting other jurists, parties, and lawyers. This “advisory mandamus” is not appropriate here. Walker v. Dist. Ct. (Michaels), 136 Nev. Adv. Op. No. 80, ___ P.3d ___ (December 10, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Noncompetition agreements: A district court may “blue-pencil” an otherwise unenforceable noncompetition agreement pursuant to a provision therein allowing court modification to redeem unreasonably restrictive clauses. In Golden Road Motor Inn, Inc. v. Islam, 132 Nev. 476, 488, 376 P.3d 151, 159 (2016), the Supreme Court of Nevada held that district courts cannot, on their own, blue-pencil a noncompetition agreement to remove unreasonably restrictive, and thus unenforceable, aspects, but that case did not address whether district courts may do so when a noncompetition agreement contains an express blue-penciling provision. Here, the Court held that Golden Road does not prohibit a district court from blue-penciling an unreasonable noncompetition agreement if the agreement itself allows for it. Duong, M.D. v. Fielden Hanson Isaacs Miyada Robison Yeh, Ltd., 136 Nev. Adv. Op. No. 87, ___ P.3d ___ (December 31, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Probate: NRS 136.240(3) allows a lost will to be probated where the will was in legal existence at the time of the testator’s death and at least two credible witnesses clearly and distinctly prove the will’s provisions. Here, the evidence adduced at trial showed the testator’s disposition toward the will’s beneficiary remained unchanged, supporting that it was in legal existence at the testator’s death. An accurate copy of the will existed. The drafting attorney testified to the contents of the will and provided an affidavit stating that she signed the will and that the testator signed and executed the will. The attorney’s assistant, who acted as the second declarant, likewise provided an affidavit stating she was present at the will’s execution, signed the will, and watched the testator sign the will, and at trial she testified to witnessing the will’s execution and to her signature on the copy. Under these facts, NRS 136.240(3)’s two-witness requirement was properly satisfied. In re: Estate of Scheide, Jr., 136 Nev. Adv. Op. No. 84, ___ P.3d ___ (December 31, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Public records: (1) When the government seeks to withhold specific information on the basis of a privacy interest, the district court must first determine whether disclosure implicates a nontrivial privacy interest; and (2) in doing so, the court should consider the risks of harassment or other harm, though the government need not prove that such harms are certain to occur. This appeal involves the scope of Clark County School District v. Las Vegas Review-Journal (CCSD), 134 Nev. 700, 429 P.3d 313 (2018). In CCSD, the Supreme Court of Nevada adopted a burden-shifting test to help courts determine whether information that implicates individual privacy interests is subject to disclosure under the Nevada Public Records Act (NPRA). The Court held that when a government agency first shows that disclosure implicates a nontrivial privacy interest, the requester must then show that the information sought is likely to further a significant public interest. The Court decided CCSD in the context of a sensitive investigative report, and certain language in that opinion could be read as limiting the case’s application to such reports. However, in the instant case, the Court clarified that CCSD is not so limited. Courts should apply the test adopted in CCSD whenever the government asserts a nontrivial privacy interest. Here, appellant Las Vegas Metropolitan Police Department (Metro) demonstrated that its officers have a nontrivial privacy interest in their unit assignments, so the Court reversed and remanded for consideration of the second step of the CCSD test, that is, whether disclosure of the unit assignments is likely to advance a significant public interest. Las Vegas Metro. Police Dep’t v. Las Vegas Review-Journal, 136 Nev. Adv. Op. No. 86, ___ P.3d ___ (December 31, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Torts: (1) The right of contribution exists when two parties are jointly or severally liable for the same injury; and (2) whether the parties are joint or successive tortfeasors is not material, so long as both parties are liable for the injury for which contribution is sought. Nevada has adopted the Uniform Contribution Among Tortfeasors Act (UCATA). Under the UCATA, “where two or more persons become jointly or severally liable in tort for the same injury[,] . . . there is a right of contribution among them.” Contribution permits “a tortfeasor who has paid more than his or her equitable share of the common liability” to recover the excess from a second tortfeasor, up to the amount of the second tortfeasor’s “equitable share of the entire liability.” A tortfeasor who settles with a claimant may recover contribution from another tortfeasor only if the settlement extinguishes the second tortfeasor’s liability. Finally, a settling “tortfeasor’s right of contribution is barred unless the tortfeasor has . . . [a]greed while action is pending against him or her to discharge the common liability and has within 1 year after the agreement paid the liability and commenced an action for contribution.” A right of contribution is present where there is an injury for which two persons are jointly or severally liable, regardless of whether the tortious conduct may be characterized as successive. Republic Silver State Disposal, Inc. v. Cash, 136 Nev. Adv. Op. No. 88, ___ P.3d ___ (December 31, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Trusts: (1) NRS 164.021(2)(c) requires a trustee’s notice to beneficiaries to include “[a]ny provision of the trust instrument which pertains to the beneficiary”; (2) in this context, the term “any” means “all”; and (3) to trigger the 120-day limitation period under NRS 164.021(4), the trustee’s notice must include all trust provisions pertaining to the beneficiary. NRS 164.021(2) uses mandatory language to describe the obligation of a trustee when he or she provides notice to beneficiaries. Furthermore, the legislative history of NRS 164.021 suggests that the Legislature desired an expedited and efficient system for trust administration. Because only a complete disclosure of all provisions of a trust instrument pertaining to a beneficiary will further the Legislature’s goals and give a beneficiary all the information he or she needs to decide whether to contest a trust, NRS 164.021(2)(c) requires strict compliance. In re: Estate of Horst Revocable Tr., 136 Nev. Adv. Op. No. 90, ___ P.3d ___ (December 31, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Uniform Foreign-Country Money Judgments Recognition Act (2005) (NRS 17.700-17.820): In this appeal from a district-court decision to recognize and enforce in Nevada the disgorgement portion of a securities-fraud judgment from British Columbia, the appellant objected that the disgorgement judgment is in the nature of a fine or penalty, so it should not be enforced outside Canada, but the Supreme Court of Nevada disagreed. Nevada has adopted the Uniform Foreign-Country Money Judgments Recognition Act (2005), in NRS 17.700 through NRS 17.820. The Act applies to foreign-country judgments that grant or deny monetary recovery and are “final, conclusive, and enforceable under the law of the jurisdiction where rendered.” A Nevada court “shall recognize a foreign-country judgment to which NRS 17.700 to 17.820, inclusive, apply,” (emphasis added), unless one of the grounds for non-recognition stated in NRS 17.750(2) or (3) is proved or one of the categorical exceptions stated in NRS 17.740(2)(a), (b), or (c) applies. The Act does not apply “to the extent that the judgment is . . . [a] fine or other penalty.” But the Act contains a “savings clause,” under which courts remain free to consider whether a judgment that falls outside the Act “should be recognized and enforced under comity or other principles.” Essentially, the Act sets base-line standards, not outer limits. It “delineates a minimum of foreign-country judgments that must be recognized by the courts of adopting states, leaving those courts free to recognize other foreign-country judgments not covered by the Act under principles of comity or otherwise.” Here, the disgorgement judgment grants monetary recovery; it is final, conclusive, and enforceable under British Columbia law; and neither the grounds for non-recognition specified in NRS 17.750(2) and (3) nor the categorical exceptions stated in NRS 17.740(2)(a) and (c) apply. NRS 17.750(1) thus mandates recognition of the disgorgement judgment except “to the extent” that it is a “fine or other penalty.” The test for whether a judgment is a fine or penalty—and so outside the Uniform Act (and NRS 17.750(1)’s) recognition mandate—is determined by whether its purpose is remedial in nature with its benefits accruing to private individuals, or it is penal in nature, punishing an offense against public justice. Applying these principles to the disgorgement portion of the British Columbia Securities Commission’s judgment, the Supreme Court of Nevada rejected the contention that it constitutes an unenforceable penalty. Instead, for purposes of NRS 17.750(1), the primary purpose of the disgorgement award “is remedial in nature with its benefits accruing to private individuals,” not penal, “punishing an offense against public justice.” The Court also found that the lower court properly recognized the disgorgement judgment as a matter of comity. Lathigee v. British Columbia Sec. Comm’n, 136 Nev. Adv. Op. No. 79, ___ P.3d ___ (December 10, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Workers’ compensation: Undocumented aliens who are injured while working for a Nevada employer may be eligible for monetary disability benefits. Nevada’s workers’-compensation statute clearly and unambiguously protects every person in the service of an employer, whether lawfully or unlawfully employed, including aliens. Although federal law prohibits employers from knowingly employing an undocumented alien, it does not prohibit insurers from compensating undocumented aliens for injuries they sustain while working. Thus, undocumented aliens are not precluded from receiving disability benefits under Nevada’s workers’-compensation laws. Assoc. Risk Mgmt., Inc. v. Ibanez, 136 Nev. Adv. Op. No. 91, ___ P.3d ___ (December 31, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/


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).

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