Nevada Appellate Court Summaries (10-3-23)

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

Administrative actions: (1) When a state employee requests a hearing to challenge the reasonableness of a disciplinary action under NRS 284.390, the Nevada Administrative Code (NAC) requires the employee to attach a copy of the written notification of the discipline to the appeal form; (2) this requirement is not jurisdictional but is instead a procedural claim-processing rule; (3) because the rule provides that an employee “must” comply with the attachment requirement, the rule is mandatory; and (4) when an employee requests a hearing to challenge a state employer’s disciplinary decision pursuant to NRS 284.390 and fails to comply with NAC 284.6562’s attachment requirement, the appeal is defective and may be dismissed. Because the appellant here failed to comply with the attachment requirement when filing her appeal form and did not seek leave to amend or otherwise cure that omission, the hearing officer did not err by dismissing her appeal. Kassebaum v. State, Dep’t of Corr., 139 Nev. Adv. Op. No. 34, ___ P.3d ___ (September 21, 2023).

Arbitration: (1) Nevada’s wrongful-death statute, NRS 41.085, creates a separate cause of action in favor of a decedent’s statutory heirs; (2) the heirs’ claims are derivative in the sense that they depend on the decedent’s personal injury, but they are otherwise independent; and (3) as such, a nonsignatory heir’s wrongful-death claim is not bound to an agreement, like the arbitration agreement in this case, that does not implicate the viability of the underlying personal-injury claim. An enforceable arbitration agreement requires offer, acceptance, meeting of the minds, and consideration. As a general rule, no one can be forced to arbitrate unless they have agreed to do so. Here, the statutory heirs did not sign the arbitration agreement, nor is there any evidence they assented to its terms.The Supreme Court of Nevada concluded that “NRS 41.085 does not allow a decedent to bind a statutory heir’s wrongful death claim to arbitration without the heir’s consent.” El Jen Med. Hosp. v. Tyler, 139 Nev. Adv. Op. No. 36, ___ P.3d ___ (September 21, 2023).

Attorney’s fees: (1) NRS 41.0393 permits the award of attorney’s fees and litigation expenses to a criminal defendant, as the prevailing party, in limited circumstances; and (2) because NRS 41.0393(8) specifically defines the courts that may award such fees and expenses as district courts and justice courts, a municipal court lacks authority to award attorney’s fees and litigation expenses under the statute. Because the plain language of NRS 41.0393 is clear and unmistakable, the Supreme Court of Nevada did not need to rely upon legislative history or public policy in its interpretation of the statute. Patterson v. Las Vegas Mun. Court, 139 Nev. Adv. Op. No. 35, ___ P.3d ___ (September 21, 2023).

Child custody: When parents with court-ordered joint legal custody of a minor child disagree on medical decisions regarding that child, the district court breaks the tie by determining which course of action is in the best interest of the child. In determining which medical decision is in the child’s best interest, the district court should consider the following factors:

            (1) The seriousness of the harm the child is suffering or the substantial likelihood that the child    will suffer serious harm;

            (2) The evaluation or recommendation by a medical professional;

            (3) The risks involved in medically treating the child; and

            (4) If the child is of a sufficient age and capacity to form an intelligent preference, the             expressed preference of the child.

Importantly, a medical professional’s’ recommendation is not necessarily conclusive in every dispute, as each specific case turns on its particular circumstances. Here, the divorced parents with joint legal custody disagreed on whether their 11-year-old child should be vaccinated against COVID-19, and the district court properly found that vaccination was in the child’s best interest. Kelley v. Kelley, 139 Nev. Adv. Op. No. 39, ___ P.3d ___ (September 28, 2023).

Civil procedure: (1) In Kame v. Emp’t Sec. Dep’t, 105 Nev. 22, 23 n.1, 769 P.2d 66, 67 n.1 (1989), the Supreme Court of Nevada previously noted that the former version of NRCP 6(d), which adds three days to certain time periods when service is made by mail, applied to the time period for filing a petition for judicial review challenging a decision by the Nevada Employment Security Division’s (NESD’s) Board of Review under NRS 612.530(1); and (2) in revisiting that issue here, the Court has now concluded that “based on its plain language, NRCP 6(d)’s three-day mailing rule does not apply to extend the time period for filing a petition for judicial review under NRS 612.530(1),” and the Court overruled Kame to the extent it holds otherwise. NRCP 6(d) provides that “[w]hen a party may or must act within a specified time after being served and service is made [by mail], 3 days are added after the period would otherwise expire under Rule 6(a).” The rule thus applies only when service triggers the time for a party to act. In this case, the statute setting the time to file a petition for judicial review from the NESD Board of Review’s determination is NRS 612.530(1). The Court has previously held that NRS 612.530(1)’s requirements “are jurisdictional and mandatory.” Under that statute, a party has “11 days after the decision of the [NESD] Board of Review has become final” to file a petition for judicial review. Because the statute uses the date the decision becomes final, rather than the decision’s service date, to trigger the time to file a petition, NRCP 6(d) does not apply by its plain language. To the extent Kame can be read to hold that the three-day mailing rule under NRCP 6(d) can apply to extend the time to file a petition for judicial review under NRS 612.530(1), the Court explicitly overruled it. Here, as stated in NESD’s decision letter, its decision became final on September 7, such that any petition for judicial review had to be filed by September 20. NRCP 6(d) does not apply to extend that deadline. Thus, the petition in this case was untimely. Jorrin v. State, Emp’t Sec. Div., 139 Nev. Adv. Op. No. 29, ___ P.3d ___ (September 7, 2023).

Criminal procedure: Even where aggravated circumstances favor dismissal with prejudice, a district court’s inquiry is not complete; rather, the district court may dismiss a charging document with prejudice only after balancing the deterrent objectives of that sanction against society’s interest in prosecuting criminal acts. The Supreme Court of Nevada considered whether the dismissal of a criminal complaint against respondent Daniel Adrian Gonzalez was an appropriate remedy for the violation of his due-process rights arising from a delay in competency-restoration treatment pending trial. After the State charged Gonzalez with sexual assault, the district court found him to be incompetent to stand trial and ordered him remanded to a psychiatric hospital for competency-restoration treatment. Gonzalez remained in jail for 160 days before being transferred to the hospital. After being transferred to the hospital, Gonzalez moved to dismiss the complaint, arguing that his continued detention in jail after the district court’s order and before being transferred to the hospital violated his due-process rights. The district court agreed and granted the motion to dismiss. The State appealed. The State conceded that Gonzalez’s due-process rights were violated but argued that the district court abused its discretion in granting the extreme remedy of dismissal under the facts of the case. The Supreme Court held that “[a]lthough we acknowledge the gravity of Gonzalez’s situation, this court’s precedent does not support the district court’s conclusion that aggravated circumstances warranted dismissing the complaint against Gonzalez with prejudice.” Furthermore, “the district court neglected to balance the deterrent objectives of dismissal against society’s interest in prosecuting criminal acts.” Thus, the district court abused its discretion. State vs. Gonzalez, 139 Nev. Adv. Op. No. 33, ___ P.3d ___ (September 14, 2023).

Guardianship: If it receives information causing concern regarding the propriety of a minor’s guardianship, a district court may sua sponte initiate the process for removing a guardian and terminating a guardianship. In doing so, the court must protect the procedural due process rights of the protected minor, parents, and guardian by, at a minimum, giving notice of the contemplated action and holding a hearing on the prospect of removal and termination so that the parties have a meaningful opportunity to be heard. All the while, the court must adhere to the applicable statutes and rules under NRS Chapter 159A and the Nevada Statewide Rules for Guardianship (NSRG) in determining whether removal of the guardian and termination of the guardianship are appropriate, making the required findings to support those decisions. Here, the district court did not give proper notice regarding the prospect of removal or termination; nor did the court hold a hearing regarding the same. The court, therefore, violated due process rights and failed to comply with the statutory requirements for removal and termination, requiring reversal. In re Guardianship of D.M.F., 139 Nev. Adv. Op. No. 38, ___ P.3d ___ (September 28, 2023).

Insurance: (1) Real party in interest JGB Vegas Retail Lessee, LLC, owns and operates a retail shopping mall on the Las Vegas Strip; (2) when COVID-19 forced JGB to shut down abruptly, it suffered significant economic losses and sought to recoup those losses under its commercial property insurance policy, arguing that the presence of COVID-19 on the property created the requisite “direct physical loss or damage” covered under the policy; and (3) as a matter of law, the policy does not provide such coverage. “Direct physical loss or damage to covered property” requires that the property must receive or be affected by actual physical harm. Presence of a physical virus on the property, even if it “attaches to” the property, does not give rise to the necessary transformative element of something like “fire, water, or smoke.” Otherwise, the alleged presence of a physical force would “render[ ] every sneeze, cough, or even exhale” a qualifying harm.

Ultimately, “the presence of COVID-19 does not constitute a physical loss of or damage to property because it does not alter the appearance, shape, color, structure, or other material dimension of the property.” Separately, evidence that the virus remains harmful while in the air or as “fomites” is similarly unconvincing because it does not demonstrate that the virus is harmful to the property. Thus, the evidence, taken as true, demonstrates only economic loss sustained amidst a worldwide pandemic.In addition, the pollution-and-contamination exclusion in this case also bars coverage because the policy explicitly and unambiguously defines “pollution or contamination” to include a virus. Starr Surplus Lines Ins. Co. v. Dist. Ct., 139 Nev. Adv. Op. No. 32, ___ P.3d ___ (September 14, 2023).

Lethal injection: (1) NRS 176.355 provides that an execution must be effectuated by “injection of a lethal drug”; and (2) the statute, combined with the U.S. Constitution’s Eighth Amendment prohibition on cruel and unusual punishment, provides the Director of the Nevada Department of Corrections with suitable standards to determine the process by which a lethal injection is to be administered. So long as legislation provides an agency with “suitable standards,” meaning those that are “sufficient to guide the agency with respect to the purpose of the law and the power authorized,” the Legislature has not delegated its lawmaking authority. NRS 176.355 must be read in context with NRS 200.030, which authorizes the imposition of the death penalty and lists the crimes for which execution is the appropriate punishment. In these statutes, the Legislature has identified the types of crimes that are punishable by death and determined the manner of execution–injection of a lethal drug–thereby exercising its exclusive authority to define crimes and penalties. By specifying the manner of execution, the Legislature has given the Director clear guidance with respect to the delegated authority to determine the execution protocol. Moreover, to comply with the Eighth Amendment, the protocol approved by the Director must avoid inflicting severe pain. Finally, an administrative agency is often better-equipped than a legislature to deal with the granular details of formulating an execution protocol. “Having determined which offenses may carry the penalty of death and specified the manner in which a death sentence must be inflicted, it was within the Legislature’s authority to delegate the details of implementing the death penalty to the Director, who is in a better position to consider all relevant facts and ensure that the death penalty is implemented consistent with legislative directive and the Eighth Amendment.” Floyd v. State, Dept. of Corr., 139 Nev. Adv. Op. No. 37, ___ P.3d ___ (September 28, 2023).

Nevada False Claims Act (NFCA): (1) The government-action bar in NRS 357.080(3)(b) prevents a private plaintiff from maintaining a private NFCA action if the action is based on the same allegations or transactions that are subject to a civil action to which the State or a political subdivision is already a party; (2) application of this provision precludes continuing an existing NFCA case by a private plaintiff even if the government entity brings its civil action after the private case is initiated; and (3) the government-action bar applies only where the two at-issue suits involve the same governmental entity as a party. NRS 357.080(3)(b) does not contain a sequencing requirement, and thus when applicable this statute requires dismissal of the private NFCA action even if the civil action on behalf of the State or a political subdivision was filed after the private action. When a civil action has been brought by or on behalf of a state governmental entity, NRS 357.080(3)(b) presents no bar to a separate private action on behalf of a different governmental entity, even where the two suits involve the same allegations or transactions. Applying this interpretation to the instant case, the Supreme Court of Nevada denied the request for writ relief because, even assuming the private and governmental actions here involve the same allegations or transactions, the two actions were brought on behalf of two separate governmental entities. “Petitioners have thus failed to demonstrate that the law requires the district court to dismiss this private action such that writ relief is warranted here.” Orbitz Worldwide v. Eighth Jud. Dist. Ct., 139 Nev. Adv. Op. No. 40, ___ P.3d ___ (September 28, 2023).

Pier and buoy permits: (1) NAC 322.190 is a regulation that sets permit fees for the residential use of piers and buoys on navigable waters in Nevada; and (2) the regulation at issue does not violate any constitutional or statutory provision and does not exceed the statutory authority granted to the State Land Registrar as the Administrator of the Division of State Lands of the State Department of Conservation and Natural Resources. The standard for reviewing the validity of a regulation is outlined in NRS 233B.110(1), which states that “[t]he court shall declare the regulation invalid if it finds that it violates constitutional or statutory provisions or exceeds the statutory authority of the agency.” (Emphasis added.) Based on the statute’s plain language, “arbitrary and capricious review” is not contemplated. Killebrew v. Donohue, 139 Nev. Adv. Op. No. 43, ___ P.3d ___ (September 28, 2023).

Probation conditions: (1) The special condition mandated by NRS 176A.410(1)(q) prohibits any defendant who is on probation for a sexual offense from accessing the internet or possessing a device capable of accessing the internet without their probation officer’s permission; and (2) under the First Amendment, the mandatory internet ban fails intermediate scrutiny because a categorical prohibition on internet access by any probationer convicted of a sex offense is not narrowly tailored to the risk of online predatory behavior the individual probationer may pose. While a probationer’s First Amendment rights may be restricted, those restrictions must be narrowly tailored with a view to the goals of supervised release—“deterring crime, protecting the public, [and] rehabilitating the defendant.” When the government imposes a content-neutral restriction on speech or conduct protected by the First Amendment, a court must apply intermediate scrutiny to evaluate whether the restriction is “narrowly tailored to serve a significant government interest” and “leaves open ample alternative channels for communication.” The category of “sexual offenses” under NRS 176A.410(1)(q) includes everything from public indecency to violent assaults to production of pornography. “It is illogical that each sexual offender, regardless of crime, rehabilitative needs, history of internet usage, or victim, poses an equally grave threat online, and the State cannot enact such a sweeping prohibition based on generalizations.” Broad restrictions on internet access may be justified “where (1) the defendant used the internet in the underlying offense; (2) the defendant had a history of improperly using the internet to engage in illegal conduct; or (3) particular and identifiable characteristics of the defendant suggested that such a restriction was warranted.” In those scenarios, a broad internet ban is necessary because the supervisee’s individual traits pose an equally broad threat. The problem with subsection (q) is not that an internet ban can never be applied; it is that it cannot mandatorily be applied to every person convicted of a sexual offense without the sentencing court considering the individualized factors that would justify such a ban.Because NRS 176A.410(1)(q) is both mandatory and restricts more speech than necessary to serve the government’s interest with no tailoring mechanism, and the State failed its burden to show otherwise, the statutory provision is facially unconstitutional under the First Amendment. The Supreme Court of Nevada also rejected the defendant’s separate challenge to an additional probation condition forbidding him from visiting places such as playgrounds and schools that primarily cater to children. NRS 176A.400(1)(c)(3) permits the imposition of any reasonable conditions including, without limitation, “[p]rohibiting the probationer from entering a certain geographic area.” Given this broad language and the obligation to liberally interpret the discretionary powers of the district court, the Supreme Court concluded that the district court did not abuse its discretion because it is reasonable to restrict an adult convicted of a sexual offense involving a child from areas where children commonly are found. Aldape v. State, 139 Nev. Adv. Op. No. 42, ___ P.3d ___ (September 28, 2023).

Renewal of judgment: (1) NRS 17.214(3) requires a judgment creditor to notify a judgment debtor of an affidavit of renewal of judgment by certified mail within three days of filing the affidavit; (2) in Leven v. Frey, 123 Nev. 399, 168 P.3d 712 (2007), the Supreme Court of Nevada concluded that a judgment creditor must satisfy NRS 17.214(3) to renew a judgment and that strict compliance with the three-day deadline is required; and (3) in the instant case, the Court reaffirmed Leven’s holding that a judgment creditor must comply with NRS 17.214(3) to renew a judgment, and the Court also concluded that the certified-mail method-of-notice requirement demands strict compliance. While Leven was limited to the timing requirement, its reasoning also extends to the certified-mail method-of-notice requirement in NRS 17.214(3). The certified-mail method-of-notice requirement is a time-and-manner provision, which weighs in favor of demanding strict compliance. Additionally, the statute uses the word “shall,” and this mandatory language also supports a determination that the provision requires strict compliance. BMO Harris Bank v. Whittemore, 139 Nev. Adv. Op. No. 31, ___ P.3d ___ (September 14, 2023).

Same-sex marriage: (1) In 2015, the United States Supreme Court held in Obergefell v. Hodges, 576 U.S.644, 675-76, 681 (2015), that same-sex couples have the fundamental right to marry on the same terms and conditions as opposite-sex couples and that states must recognize same-sex marriages lawfully performed in states that already permitted such marriages; (2) Obergefell requires Nevada courts to recognize same-sex marriages performed in other states even if, at the time of the out-of-state marriage, Nevada did not permit or recognize such marriages; and (3) Obergefell does not require Nevada courts to “backdate” a marriage before the couple solemnized their union. In states recognizing common-law marriages, Obergefell‘s right-to-marry holding has retroactive effect because in those states opposite-sex couples may prove a common-law marriage formed before the Obergefell decision, so same-sex couples must be afforded the same opportunity. In contrast, the right-to-marry holding has no retroactive effect in Nevada because Nevada does not recognize common-law marriages.In Nevada, “[c]onsent alone will not constitute marriage; it must be followed by solemnization as authorized and provided by [NRS Chapter 122].” Solemnization requires the parties to declare, in the presence of an authorized official and at least one witness, that “they take each other as spouses.” Nevada does not recognize common-law marriages formed after March 29, 1943, and the Supreme Court of Nevada has consistently reaffirmed that Nevada does not recognize such marriages. The solemnization requirement and ban on common-law marriage apply to all couples regardless of gender or sexual orientation. Other jurisdictions agree that Obergefell does not require courts to retroactively construct a marriage when the jurisdiction does not recognize common-law marriage.Thus, the Supreme Court of Nevada held that “the effective date of a marriage will not predate the solemnized marriage itself for property division purposes in a divorce, even if a party asserts that the couple would have married earlier but for the later-held-to-be-unconstitutional ban on marriage between same-sex couples.” Candelaria v. Kelly, 139 Nev. Adv. Op. No. 30, ___ P.3d ___ (September 14, 2023).

Court of Appeals

Workers’ compensation: (1) NRS 616C.390 provides for the reopening of closed workers’ compensation claims upon a change of circumstances resulting from the work-related injury; and (2) when a claimant seeks to reopen a claim that was accepted for multiple body parts, the claim only needs to be reopened for those body parts for which a change of circumstances has been demonstrated. Here, although the claimant was previously treated for injuries to several parts of her body, she sought claim reopening due to the worsening condition of her lumbar spine. Because substantial evidence supported the appeals officer’s decision that the claim should be reopened for treatment to the lumbar spine only, the Court of Appeals affirmed. Olvera v. Wynn Las Vegas, 139 Nev. Adv. Op. No. 41, ___ P.3d ___ (September 28, 2023).


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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