Written by Joe Tommasino, Esq.
Supreme Court of Nevada
Anti-SLAPP statutes: To demonstrate by prima facie evidence a probability of success on the merits of a public-figure defamation claim, the plaintiff’s evidence must be sufficient for a jury, by clear and convincing evidence, to reasonably infer that the publication was made with actual malice; while the plaintiff at this prong must prove only that their claim has minimal merit, a public-figure defamation claim does not have minimal merit, as a matter of law, if the plaintiff’s evidence of actual malice would not be sufficient—even if credited—to sustain a favorable verdict under the clear-and-convincing standard. The anti-SLAPP statutes provide defendants with an opportunity—through a special motion to dismiss—to obtain an early and expeditious resolution of a meritless claim for relief that is based on protected activity. District courts resolve such motions based on the framework in NRS 41.660(3). Under the first prong, the court must “[d]etermine whether the moving party has established, by a preponderance of the evidence, that the claim is based upon a good faith communication in furtherance of the right to petition or the right to free speech in direct connection with an issue of public concern.” If the moving party makes this initial showing, the burden shifts to the plaintiff under the second prong to show “with prima facie evidence a probability of prevailing on the claim.” Here, the Supreme Court of Nevada considered the proper burden a public figure must carry to show a probability of prevailing on a defamation claim at the second prong. The court clarified that, under the second prong, a public-figure defamation plaintiff must provide sufficient evidence for a jury, by clear and convincing evidence, to reasonably infer that the publication was made with actual malice. Wynn v. The Associated Press, 140 Nev. Adv. Op. No. 56, _ P.3d _ (September 5, 2024).
Grand jury: (1) It is error for the state to give the grand jury an instruction that is unsupported by the evidence and does not address a necessary element of an offense under NRS 172.095(2); and (2) the state cannot avoid its obligation under NRS 172.145(2) to present exculpatory evidence to the grand jury by characterizing such evidence as merely inconsistent statements. Here, the state exceeded its statutory duty and gave the grand jury an improper and prejudicial instruction on grooming. The state also failed to present exculpatory evidence. The combination of these errors undermines confidence in the grand-jury proceedings and creates intolerable damage to the independent function of the grand-jury process. Chasing Horse (Nathan) v. Dist. Ct. (State), 140 Nev. Adv. Op. No. 63, _ P.3d _ (September 26, 2024).
Law-of-the-case doctrine: Because previous rulings become the law of the case and district court judges have coextensive jurisdiction, judges should be reticent to overrule previous decisions by another judge absent compelling circumstances. The law-of-the-case doctrine prevents the reconsideration, during the course of a single, continuous lawsuit, of those decisions which are intended to put a particular matter to rest. When a case is transferred to a different or successor judge, the law-of-the-case doctrine prescribes that, while not absolutely barred from reconsidering a predecessor judge’s order, a successor judge should not do so merely because the later judge disagrees with the first judge. However, the law-of-the-case doctrine is not unlimited. Federal courts have identified these specific circumstances when a judge may revisit a prior ruling under the law-of-the-case doctrine:
(1) Where subsequent proceedings produce substantially new or different evidence;
(2) There has been an intervening change in controlling law; or
(3) The prior decision was clearly erroneous and would result in manifest injustice if enforced.
Here, the Supreme Court of Nevada explicitly adopted these exceptions to the law-of-the-case doctrine. The court further clarified that the law-of-the-case doctrine applies even to issues decided in interlocutory orders, despite language in NRCP 54(b) providing that a district court may revise an order or decision “at any time before” entry of final judgment. Litchfield v. Tucson Ridge HOA C/W 86245, 140 Nev. Adv. Op. No. 57, _ P.3d _ (September 5, 2024).
Parental rights: (1) Under NRS 128.107, courts must consider several factors in determining whether to terminate parental rights, including a parent’s efforts to adjust their circumstances so that it is in the child’s best interest to return home; (2) NRS 128.109 creates a presumption that termination of parental rights is in the best interest of the child when the child has been placed outside the home; (3) NRS 128.107 is limited to cases where children are not in the custody of either parent; and (4) NRS 128.109 is limited to NRS Chapter 432B cases. The Supreme Court of Nevada emphasized that a parent’s inability to overcome financial barriers does not support a finding of abandonment, and a pro se and indigent parent’s inability to navigate the judicial system also cannot be used as support for the finding of abandonment. In re: Parental Rights as to L.R.S., J.M.S. and J.L.S., 140 Nev. Adv. Op. No. 62, _ P.3d _ (September 19, 2024).
Professional negligence: (1) A complaint that lacks an expert affidavit satisfying NRS 41A.071 cannot be amended to cure the deficiency, and an unsupported professional-negligence claim must be dismissed; and (2) the federal Public Readiness and Emergency Preparedness Act (PREP Act) bars a claim alleging a failure to obtain informed consent before administering a covered countermeasure. Although the claims against the defendant hospital were supported by a sufficient expert declaration, the claims were nevertheless barred by the PREP Act because the allegation that the hospital failed to obtain consent to administer remdesivir was related to the administration of a covered countermeasure. De Becker v. UHS of Del., Inc., 140 Nev. Adv. Op. No. 58, _ P.3d _ (September 19, 2024).
Short trials: (1) In 2022, the Supreme Court of Nevada amended the Nevada Short Trial Rules (NSTR); (2) one amendment for NSTR 27(b)(4) increased the amount of attorney fees a short trial judge may award from $3,000 to $15,000; (3) the amendments became effective on January 1, 2023; and (4) the amendment to NSTR 27(b)(4) did not affect the parties’ substantive rights but was instead a procedural rule change governing the available remedy.
When a statute or rule is amended, there is a general presumption in favor of prospective application. This general presumption does not apply to statutes or rules that do not change substantive rights and instead relate solely to remedies and procedure. Such procedural and remedial rule changes will be applied to any cases pending when enacted. Here, the specific amendment to NSTR 27(b)(4) at issue did not create or remove any conditions under which a short trial judge may award fees. Rather, the amendment simply increased the maximum amount of attorney fees a short trial judge may award. Thus, it did not create or remove any duty, right, or obligation; it simply “specifie[d] how those [preexisting] duties, rights, and obligations should be enforced.” In other words, it may be reasonably characterized as a procedural amendment governing the available remedy. The amendment did not upset any reasonable expectations of the parties, and the district court did not err by applying the amended rule to this case. Griffith v. Rivera, 140 Nev. Adv. Op. No. 60, _ P.3d _ (September 19, 2024).
Warranties: (1) The implied warranty of fitness for a particular purpose applies not just when a seller had actual knowledge of the buyer’s intended purpose but also in cases in which the seller had reason to know of the particular purpose; (2) a warranty is not excluded when there is a latent defect in the goods that a simple examination would not detect; and (3) the economic-loss doctrine precludes tort claims where the only damage was to the product itself. Here, Hi-Tech’s sale of goods carried with it an implied warranty of fitness for a particular purpose because Hi-Tech knew of the particular purpose of the aggregate (gravel and sand), and Pavestone relied on Hi-Tech’s skill and judgment. Hi-Tech breached the warranty when it provided Pavestone with a product unfit for commercial paving. Pavestone is excused from not identifying the defect because it was latent and could not have been detected with a simple examination. Moreover, the economic-loss doctrine precludes Pavestone’s noncontractual claims because Pavestone did not provide sufficient evidence of other property damage. The economic-loss doctrine bars tort claims in cases in which there is no personal injury or property damage. Accordingly, the Court affirmed the district court’s judgment as to Pavestone’s warranty claim but reversed its judgment regarding Pavestone’s products-liability claims. Hi-Tech Aggregate, LLC v. Pavestone, LLC, 140 Nev. Adv. Op. No. 59, _ P.3d _ (September 19, 2024).
Workers’ compensation: (1) This opinion reconciles Breen v. Caesars Palace, 102 Nev. 79, 715 P.2d 1070 (1986), Poremba v. S. Nev. Paving, 133 Nev. 12, 388 P.3d 232 (2017), and NRS 616C.215(5), the statute that controls a workers’ compensation insurer’s lien rights; (2) there is no requirement that an insurer intervene or otherwise participate in the injured worker’s third-party claim to recover on its lien under NRS 6160.215(5); (3) the Breen formula must be abandoned in favor of a straightforward lien analysis, under which the insurer’s lien applies to recovery from any third parties for the covered injuries without an allocation of the injured employee’s litigation fees and costs; (4) in contradiction of the holding in Poremba, NRS 616C.215(5) mandates that an insurer collect from the “total proceeds” of any recovery of an injured worker, including any portion allocated to noneconomic injuries; and (5) those portions of Breen and Poremba that are inconsistent with this opinion are overruled. Appellant Am Trust North America, Inc., a workers’ compensation insurer, intervened as subrogee in a third-party lawsuit filed by respondent Ramon Vasquez, Jr., against multiple defendants in connection with injuries sustained in the course and scope of his employment. Eventually, Vasquez and the defendants reached a settlement agreement. On a subsequent motion to adjudicate Am Trust’s workers’ compensation lien based on Vasquez’s settlement proceeds, the district court determined that, under Breen and Poremba, AmTrust was not entitled to recover any portion of the settlement proceeds despite its lien. On appeal, the Supreme Court of Nevada recognized that workers’ compensation is a creature of statute. Accordingly, any changes in the workers’ compensation program must come from the legislature, not the courts. Under NRS 616C.215(5), “[i]n any case where the insurer . . . is subrogated to the rights of the injured employee . . . the insurer . . . has a lien upon the total proceeds of any recovery from some person other than the employer, whether the proceeds of such recovery are by way of judgment, settlement or otherwise.” Although Breen correctly concluded that insurers are entitled to assess the total proceeds of third-party recoveries, meaning proceeds designated to compensate for both economic and noneconomic loss, nothing on the face of the statute requires insurers to bear a portion of the costs and fees incurred by an insured during third-party litigation. As neither NRS 616C.215(5) nor any other provision in the workers’ compensation statutory scheme requires an insurer to monetarily contribute to third-party litigation before assessing its lien, Breen was wrongly decided. The court found similar flaws in Poremba. Thus, the court clarified that “an insurer may assess the total proceeds of a third-party settlement, even where the matter is reopened pursuant to NRS 616C.390 and irrespective of whether the proceeds are designated as economic or noneconomic in nature.” Litigants and courts should now rely wholly upon NRS 616C.215(5) and applicable surrounding statutes when adjudicating workers’ compensation liens. AmTrust N. Am., Inc. v. Vasquez, Jr., 140 Nev. Adv. Op. No. 61, _ P.3d _ (September 19, 2024).
Nevada Court of Appeals
Employment: (1) For a state employee to administratively appeal a workplace disciplinary action, NAC 284.6562(2)(b) requires the employee to attach a copy of the written notification of discipline to the appeal form; and (2) an employee may substantially comply with NAC 284.6562(2)(b)’s attachment requirement by accurately filling out and signing form NDP-54 and then supplying a copy of the written discipline in response to a motion to dismiss. The Court of Appeals also addressed procedural due process that is owed to permanent classified state employees during internal investigations conducted pursuant to NRS 284.387. The court concluded that Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985) defines such employees’ due- process rights prior to the termination of employment. Under Loudermill, due process entitles employees to “oral or written notice of the charges against [them], an explanation of the employer’s evidence, and an opportunity to present [their] side of the story” at a pretermination hearing. Because the employee here received the requisite notice, an explanation of evidence, and an opportunity to respond before the secretary of state terminated his employment, the hearing officer erred when she found that the employee’s due process rights were violated during the state’s pretermination investigation. State. Sec’y of State v. Wendland, 140 Nev. Adv. Op. No. 64, _ P.3d _ (September 26, 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
© 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 (Aug. 2024), the official publication of the Clark County Bar Association. See https://clarkcountybar.org/about/member-benefits/communique-2024/communique-aug-2024/
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