Written by Joe Tommasino, Esq.
Supreme Court of Nevada
Appealable determinations: An order dismissing a factual-innocence petition without prejudice pursuant to NRS 34.960 is not appealable. The provisions governing factual-innocence petitions are codified in NRS 34.900–.990. NRS 34.970(9) provides a right to appeal only from orders granting or denying a hearing under NRS 34.970, but NRS 34.970 only comes into play if the district court determines that the petition meets the pleading requirements in NRS 34.960. Thus, like the rest of NRS 34.970, subsection nine’s appeal provision applies when the factual-innocence petition has not been dismissed without prejudice pursuant to NRS 34.960. Put simply, no court rule or statute authorizes an appeal from an order dismissing an innocence petition without prejudice under NRS 34.960. At Footnote one, the Supreme Court of Nevada recognized that “[b]ecause the initial review pursuant to NRS 34.960 is within the district court’s discretion, . . . a petition for a writ of mandamus filed in this court may be an appropriate vehicle for convicted individuals seeking review of an order dismissing a factual-innocence petition without prejudice.” Sanchez (Hugo) v. State, 140 Nev. Adv. Op. No. 78, _ P.3d _ (December 19, 2024).
Child support: (1) The Legislature of the State of Nevada has enacted a statutory scheme, supplemented by comprehensive regulations adopted by the Division of Welfare and Supportive Services of the Department of Health and Human Services, to guide courts in determining a parent’s child-support obligation; (2) one area of these provisions that has remained unclear is the adjustment required, if any, to a parent’s child-support obligation based on transportation costs; and (3) in this case of first impression, the Supreme Court of Nevada clarified that transportation costs incurred in ensuring a child spends time with both parents must be considered in determining a parent’s child-support obligation under NAC 425.150. The Nevada Administrative Code provides a formula for determining a parent’s base child-support obligation. If a court wishes to deviate from that baseline obligation, the court may adjust the amount based “on the specific needs of the child and the economic circumstances of the parties,” as guided by eight enumerated factors and specific findings of fact. One of the eight factors listed in NAC 425.150 supporting adjustment is “[t]he cost of transportation of the child to and from visitation.” Relocation alone is not a proper consideration for determining transportation costs. Considering that NAC 425.150 plainly contemplates deviations to child support based on transportation costs, the Supreme Court of Nevada concluded that transportation costs are part of the child-support analysis, and transportation costs cannot be ordered separately. The Court emphasized that NAC 425.150 requires district courts adjusting child support to examine “the specific needs of the child and the economic circumstances of the parties” based on the enumerated factors. The Court also implicitly recognized reasonableness as a requirement in evaluating the factors under NAC 425.150. Martinez v. Martinez (Child Custody), 140 Nev. Adv. Op. No. 73, _ P.3d _ (November 27, 2024).
Double jeopardy: (1) A defendant cannot be convicted of both a theft crime and possessing or receiving the property stolen in the commission of the same theft crime; (2) a theft crime, such as grand larceny, and possession of stolen property are mutually exclusive, alternative offenses; and (3) separate convictions for mutually exclusive offenses based upon a single act cannot stand. In determining whether the legislature has authorized multiple punishments, a court must first consider the statutory text. If the statutes expressly authorize punishment for both offenses, the double-jeopardy analysis ends there. When legislative intent is not clear, a court typically next turns to the Blockburger test, which is focused on the elements of each offense, but Blockburger alone may not be determinative. Here, the Supreme Court of Nevada held that because the defendant’s convictions for grand larceny and possession of stolen goods arose from the same act, the defendant could have been convicted of grand larceny or possession of stolen goods, but not both. Separately, the Court also concluded that a motion to suppress on the ground that a warrant was “illegally executed” does not encompass a warrant that was properly executed but untimely returned. Alvarez (John) v. State, 140 Nev. Adv. Op. No. 79, _ P.3d _ (December 19, 2024).
Foster parents: (1) NRS Chapter 432B provides different roles for district courts and child-welfare-services agencies in protecting children from abuse and neglect; and (2) when the district court acts without statutory authority and usurps control over a matter statutorily delegated to a child-welfare-services agency, it acts arbitrarily and capriciously. During a proceeding under NRS Chapter 432B, the district court ordered the Clark County Department of Family Services (DFS) to provide financial rental assistance to the subject children’s foster parent. Petitioners, DFS and the Clark County District Attorney’s Office, argued that the district court lacked authority to enter such an order and petitioned the Supreme Court of Nevada for a writ of mandamus or prohibition, seeking to have the order vacated. The Supreme Court concluded that the district court lacked statutory authority to order DFS to pay rental assistance to a foster parent. The agency has broad statutory authority to decide how to spend the budget appropriated to it. The district court thus acted arbitrarily and capriciously in purporting to exercise an authority it did not have and in interfering with the agency’s management of its budget. In re: Matter of N.R.R. and N.I.R., 140 Nev. Adv. Op. No. 77, _ P.3d _ (December 5, 2024).
Gangs: In this case, the state presented at least slight or marginal evidence to support a reasonable inference that Hells Angels members commonly engage in felony-level violence directed at rival motorcycle clubs, such that the group constitutes a criminal gang under NRS 193.168. Nevada’s criminal gang-enhancement statute, NRS 193.168, provides for an additional prison sentence, to run consecutively to the sentence for the underlying offense, for any person convicted of a felony “committed knowingly for the benefit of, at the direction of, or in affiliation with, a criminal gang, with the specific intent to promote, further or assist the activities of the criminal gang.”’
The Supreme Court of Nevada held that evidence of conduct of nonlocal Hells Angels members was relevant to whether Hells Angels engages in common felonious activity. Moreover, evidence of criminal activity was not too remote to support probable cause that Hells Angels was a gang at the time of the underlying shooting incident. Finally, the Court emphasized that NRS 193.168 does not require the state to prove that a defendant is a member of a criminal gang; rather, it allows the sentence enhancement for “any person” convicted of a felony committed “for the benefit of, at the direction of, or in affiliation with, a criminal gang.” NRS 193.168(1) (emphasis added). Therefore, the defendant’s argument that the state presented insufficient evidence of his Hells Angels membership lacked merit. State v. Devries (Richard) C/W 86648/86649/86650/86651/86652/86653, 140 Nev. Adv. Op. No. 82, _ P.3d _ (December 26, 2024).
Medical malpractice: (1) A patient’s suicide does not, as a matter of law, prevent a medical provider from being liable for medical malpractice; and (2) when a prima facie claim of medical malpractice is established, whether the medical provider breached a duty of care or caused the patient’s death are factual matters to be decided by the trier of fact. This matter was one of first impression in Nevada and asked whether the “suicide rule” should be adopted as a complete defense to claims of medical malpractice. Nevada’s professional-negligence statutes, NRS Chapter 41A, do not preclude a medical provider from being held liable for a patient’s suicide, and the Supreme Court of Nevada has never held that such a preclusion exists. The Supreme Court declined to adopt a rule that a patient’s suicide relieves a medical provider of liability for the patient’s death. Instead, the Court held that the determination as to whether a medical provider is liable for a patient’s injuries must be resolved under established medical-malpractice law. A medical provider who is alleged to have provided negligent care to a patient owes a duty of care to that patient, regardless of whether the medical provider has control over, or custody of, the patient. If the medical provider’s conduct is proven to fall below the standard of care, then “the crucial inquiry is whether the defendant’s negligent conduct led to or made it reasonably foreseeable that the deceased would commit suicide.” If the patient’s suicide is a foreseeable consequence of the medical provider’s negligence, then the medical provider may be held liable. However, where the patient’s suicide is not foreseeable, then the suicide is a superseding intervening cause, severing the causal chain and relieving the medical provider of liability for his or her negligence. Whether an event is a superseding intervening cause is a question of fact. Bourne v. Valdes, M.D., 140 Nev. Adv. Op. No. 74, _ P.3d __ (November 27, 2024).
PERS (Nevada Public Employees’ Retirement System): (1) The Las Vegas Police Managers and Supervisors Association and the Las Vegas Peace Officers Association enjoy the statutory power to negotiate holidays on behalf of their members, and (2) the plain text of NRS 288.150(2)(d) requires PERS to collect additional retirement contributions in line with increased wages earned on the negotiated holidays. Here, the Associations negotiated with law- enforcement agencies for additional holidays, including Juneteenth, Christmas Eve, and New Year’s Eve. Despite the negotiated agreements, PERS refused to collect the increased retirement contribution rates on holiday pay for the additional holidays. The Supreme Court of Nevada concluded that PERS’s constitutional authority to govern is not infringed by the Associations’ power to negotiate holidays. Moreover, PERS is statutorily obligated to govern the retirement system and cannot escape that liability merely by not being present in negotiations or not being a party to a collective bargaining agreement. Finally, the Associations’ power to negotiate holidays does not violate the Internal Revenue Service Tax Code. Pub. Employees’ Ret. Sys. of Nev. v. Las Vegas Managers and Supervisors Ass’n, 140 Nev. Adv. Op. No. 80, _ P.3d _ (December 19, 2024).
Preemption: (1) NRS 482.305 holds short-term lessors of motor vehicles who fail to provide minimum insurance coverage to lessees jointly and severally liable for damages caused by a lessee’s negligence; (2) a federal statute known as the Graves Amendment, 49 USC § 30106, prohibits states from holding vehicle lessors vicariously liable for damages caused by others without a showing of negligence or wrongdoing; and (3) NRS 482.305 is NOT preempted by the Graves Amendment because it is a financial responsibility law that is preserved by the Graves Amendment’s savings clause. Here, “personal-injury actions involving rented or leased motor vehicles” is a field traditionally occupied by the states. Thus, the Supreme Court of Nevada reviewed any ambiguity with respect to Congress’s intent behind the Graves Amendment in a manner that disfavors preemption of NRS 482.305. Malco Enter. of NV, Inc. v. Woldeyohannes, 140 Nev. Adv. Op. No. 76, _ P.3d _ (December 5, 2024).
Redemption: (1) NRS 116.31166 provides property owners and their successors in interest with a statutory right to redeem property; and (2) upon a testator’s death, a will beneficiary is immediately vested with a beneficial interest in devised property and becomes the testator’s successor in interest for purposes of NRS 116.31166. The central question here was whether a beneficiary to a nonprobated will who is devised real property is the testator’s successor in interest for purposes of the redemption statute, NRS 116.31166. Mable Hrynchuk named Bryan Kenton as the sole beneficiary to her estate, which included her residential property. Following her death, the homeowner’s association foreclosed on the property and sold it to appellant Saticoy Bay LLC Series 3580 Lost Hills at a foreclosure sale. As the sole named beneficiary, Kenton sought to redeem the property as a successor in interest through his attorney-in-fact, respondent Foreclosure Recovery Services, Inc. Saticoy Bay refused to honor the redemption, asserting that Kenton was not the successor in interest in the property and therefore had no rights of redemption under Nevada law. The Supreme Court of Nevada held that “a will beneficiary is immediately vested with beneficial interest in devised property at the time of the testator’s death and is therefore the testator’s successor in interest for the purposes of NRS 116.31166.” Accordingly, the Court affirmed the district court’s order granting Foreclosure Recovery Services’ motion for summary judgment in the underlying litigation. Saticoy Bay LLC Ser. 3580 Lost Hills v. Foreclosure Recovery Ser., LLC, 140 Nev. Adv. Op. No. 75, _ P.3d _ (November 27, 2024).
Nevada Court of Appeals
Good-time credits: (1) Appellant Arinza Smith’s claim seeking the application of a revised method for determining good-time credits was a challenge to the computation of time served and thus had to be made in a postconviction habeas petition pursuant to NRS Chapter 34; and (2) Smith had a plain, speedy, and adequate remedy in the ordinary course of law by means of filing such a petition, so a writ of mandamus is inappropriate here. Senate Bill (S.B.) 413 (2023) provides a revised method for determining credits to reduce the sentence of an offender. This revised method will apply “to an offender sentenced to prison for a crime committed: (1) on or after July 1, 2025; or (2) before July 1, 2025, if the offender elects to be subject to the revised method.” A postconviction petition for a writ of habeas corpus “[i]s the only remedy available to an incarcerated person to challenge the computation of time that the person has served pursuant to a judgment of conviction, after all available administrative remedies have been exhausted.” S.B. 413 does not provide a “revised method of sentencing.” It provides inmates who were sentenced to prison for a crime committed before July 1, 2025, with an alternative method for determining good-time credits.
And a postconviction habeas petition challenging the computation of time served may dispute the application of credits toward an inmate’s sentence, as well as the method by which an inmate’s sentence is calculated. Therefore, Smith’s claim seeking the application of a revised method for determining good-time credits was a challenge to the computation of time served and thus had to be made in a postconviction habeas petition pursuant to NRS Chapter 34. Accordingly, Smith had a plain, speedy, and adequate remedy in the ordinary course of law by means of filing such a petition, and mandamus was inappropriate. Smith (Arinza) v. State, 140 Nev. Adv. Op. No. 81, _ P.3d _ (December 19, 2024).
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/
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
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This article was originally submitted for publication in the Communiqué (Feb. 2025), the official publication of the Clark County Bar Association. See https://clarkcountybar.org/about/member-benefits/communique-2025/communique-feb-2025/.
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