Nevada Appellate Court Summaries (10-6-21)

Check out these summaries of recent opinions of the Supreme Court of Nevada and the Nevada Court of Appeals, as compiled by Joe Tommasino, Esq.

Supreme Court of Nevada

Aggravating circumstances: Because the conviction supporting the sole aggravating circumstance was vacated, Appellant is now actually innocent of the death penalty, such that he overcame the procedural bars that apply to his postconviction habeas petition, and his death sentence violates the Eighth Amendment. Appellant was sentenced to death after being found guilty of first-degree murder. His sentence depended on a single aggravating circumstance–a New York conviction for a felony involving the use or threat of violence to another person. However, a New York court recently vacated the conviction and dismissed the charge. The Supreme Court of Nevada found that the aggravating circumstance at issue requires a conviction for, not just the commission of, a prior violent felony, and Appellant no longer has such a conviction. Howard (Samuel) v. State (Death Penalty—PC) C/W 81279, 137 Nev. Adv. Op. No. 48, ___ P.3d ___ (September 16, 2021).

Anti-SLAPP protections: (1) Appellant met the good-faith standard under the anti-SLAPP framework because her statements were either opinions, were truthful, or were made without knowledge of their falsehood, as supported by sworn affidavit; (2) the absolute litigation privilege applies at the second prong of the anti-SLAPP analysis; and (3) a proceeding before the Nevada Real Estate Division (NRED) is quasi-judicial for purposes of the privilege. A court must grant an anti-SLAPP special motion to dismiss where (1) the defendant shows, by a preponderance of the evidence, that the claim is based on a “good faith communication in furtherance of . . . the right to free speech in direct connection with an issue of public concern” and (2) the plaintiff fails to show, with prima facie evidence, a probability of prevailing on the claim. To satisfy the first prong of the anti-SLAPP special-motion-to-dismiss analysis, the defendant must show that (1) “the comments at issue fall into one of the four categories of protected communications enumerated in NRS 41.637” and (2) the communication is made in good faith in that it is “truthful or is made without knowledge of its falsehood.” Opinion statements cannot be false, as “there is no such thing as a false idea.” Under the second prong of the analysis, the plaintiff has the burden of showing that his or her claims have at least minimal merit in order to proceed with litigation. The absolute litigation privilege applies at the second prong of the anti-SLAPP analysis because a plaintiff cannot show a probability of prevailing if a privilege applies to preclude the defendant’s liability. The absolute litigation privilege extends to quasi-judicial proceedings before executive officers, boards, and commissions. The Supreme Court concluded that an NRED proceeding initiated by a complaint from a party in a real-estate transaction is quasi-judicial. Thus, “statements made in the context of an NRED proceeding, regardless of whether it proceeds to a hearing, are subject to the absolute litigation privilege when they meet the criteria for the privilege to apply.” Williams v. Lazer, 137 Nev. Adv. Op. No. 44, ___ P.3d ___ (September 16, 2021).

Arbitration: An arbitration award can only be overturned for very limited reasons, and mere error is not one of those reasons. The party seeking to attack the validity of an arbitration award has the burden of proving, by clear and convincing evidence, the statutory or common-law ground for challenging the award. Those grounds do not include that the arbitrator committed an error or even a serious error. Rather, the grounds are narrow and present a “high hurdle.” The statutory grounds for vacatur are in NRS 38.241. The only one arguably relevant here is that the “arbitrator exceeded his or her powers.” Arbitrators exceed their powers when they address issues or make awards outside the scope of the governing contract. Arbitrators do not exceed their powers if their interpretation of an agreement, even if erroneous, is rationally grounded in the agreement. A reviewing court should conduct an abbreviated review limited to determining whether the award, on its face, (1) directly contradicts the express language of the contract, or (2) appears fanciful or otherwise not “colorable.” A court will not find that the arbitrator exceeded his or her powers by misinterpreting the contract unless there is not even a minimally plausible argument to support the arbitrator’s decision. One of the common-law grounds for vacatur is that an award may be vacated if it is “arbitrary, capricious, or unsupported by the agreement.” An award is arbitrary and capricious if the arbitrator’s factual findings are not supported by substantial evidence in the record. Additionally, an arbitration award may be vacated if the arbitrator manifestly disregarded the law. Manifest disregard of law goes beyond whether the law was correctly interpreted; it encompasses a conscious disregard of applicable law. The arbitrator must not only reach a legally incorrect result but must also do so deliberately. News+Media Capital Grp. LLC v. Las Vegas Sun, Inc., 137 Nev. Adv. Op. No. 45, ___ P.3d ___ (September 16, 2021).

Attorneys: (1) When an attorney is elected to public office and then violates the Rules of Professional Conduct, the attorney’s position as an elected official does not entitle the attorney to qualified immunity from professional discipline; (2) the Commission on Ethics’ authority over public officers is not exclusive; and (3) an attorney who engages in professional misconduct while in public office remains subject to the disciplinary jurisdiction of the Supreme Court of Nevada and disciplinary boards and hearing panels created under the Supreme Court Rules, regardless of whether the misconduct also falls within the Commission on Ethics’ jurisdiction. Here, because the State Bar proved by clear and convincing evidence that attorney Christopher Arabia violated two rules of professional conduct and a public reprimand sufficiently serves the purpose of attorney discipline, the Supreme Court adopted the hearing panel’s recommendation and reprimanded Arabia for those violations. In re: Discipline of Christopher R. Arabia, 137 Nev. Adv. Op. No. 59, ___ P.3d ___ (September 23, 2021).

Civil rights: (1) A party is generally not required to exhaust administrative remedies before filing a § 1983 civil-rights claim; and (2) here, the § 1983 claim is, at its core, one for substantive due process, and because the exception for procedural-due-process claims does not apply, the district court improperly dismissed the § 1983 civil-rights claim for failure to exhaust administrative remedies. Consistent with Patsy v. Board of Regents, 457 U.S. 496 (1982), a party generally is not required to exhaust administrative remedies before filing a § 1983 civil-rights claim. The case of Zinermon v. Burch, 494 U.S. 113 (1990), provides a limited exception to Patsy’s general rule for procedural-due-process claims. Here, the district court erred by requiring Appellant to administratively exhaust all potential remedies in his case before bringing his § 1983 and state-law tort claims, because, while related, the cases ultimately seek different remedies for different wrongs.

The district court also erred by finding that Appellant’s § 1983 claim was solely a procedural-due- process claim subject to the exhaustion doctrine because Appellant actually presented a substantive- due-process claim. Eggleston v. Stuart, 137 Nev. Adv. Op. No. 51, ___ P.3d ___ (September 23, 2021).

Construction defect: Because the Legislature expressly directed that the amended statute of repose apply retroactively, and because the City of North Las Vegas’s action was filed within the extended deadline and remained pending when the amendment became effective, the district court did not manifestly abuse or arbitrarily or capriciously exercise its discretion when it applied the extended repose period and revived the claims. NRS 11.202 previously imposed a six-year repose period on construction-defect actions. In 2019, however, the Legislature enacted Assembly Bill 421, which extended NRS 11.202’s repose period to ten years. The Legislature lengthened the statute of repose because the shorter repose period prejudiced Nevada residents, and the Legislature clearly intended the amendment to apply retroactively. Furthermore, as amended, the plain language of NRS 11.202 allows a claim to be brought so long as it was filed within ten years after the date of substantial completion of the construction work, regardless of whether the claim would have been barred under the previous six-year statute of repose at the time the complaint was filed. Therefore, the claims in this case were properly filed within the ten-year statute of repose. Dekker/Perich/Sabatini, Ltd. v. Dist. Ct. (City of N. Las Vegas), 137 Nev. Adv. Op. No. 53, ___ P.3d ___ (September 23, 2021).

Contempt: (1) NRS 22.030(3) provides that in cases of indirect contempt, “the judge of the court in whose contempt the person is alleged to be shall not preside at the trial of the contempt over the objection of the person,” and (2) motions for change of judge under NRS 22.030(3) must be made with reasonable promptness under the circumstances. While a district court has no discretion to deny a timely and proper motion for a new judge under NRS 22.030(3), a party may waive its right to request a new judge by failing to make that request in a reasonably prompt manner. Here, the district court properly found that a request for a new judge was not made reasonably promptly when that request was made 37 days after the district court set the applicable hearing date. Nuveda, LLC v. Dist. Ct. (Terry), 137 Nev. Adv. Op. No. 54, ___ P.3d ___ (September 23, 2021).

Criminal procedure: (1) The prospective waiver of the right to appellate review raises concerns because when a defendant agrees to such a waiver, the defendant cannot know what errors may occur in subsequent proceedings; and (2) a prospective appeal waiver that is knowingly and voluntarily entered will not be honored if denying a right of appeal would work a miscarriage of justice. During a capital trial, Appellant stipulated to a sentence of life without the possibility of parole if the jury found him guilty and to waive his right to appeal issues “stemming from the guilt phase of the trial.” In exchange, the State agreed to withdraw its notice of intent to seek the death penalty. The jury found Appellant guilty, and the court, sitting without a jury, sentenced him to life without the possibility of parole. The Supreme Court of Nevada held that Appellant did not waive any errors that occurred during closing arguments because oral representations made to the court and reflected in the record indicate that the parties did not intend to extend the waiver to such errors. Further, Appellant did not waive any errors that occurred during sentencing because sentencing was clearly not part of “the guilt phase of the trial.” It is less clear on these facts whether voir dire is encompassed within “the guilt phase of trial,” so the Supreme Court construed the waiver against the government and concluded that Appellant did not waive the claim relating to jury selection. However, Appellant waived other alleged errors, even those that may have arisen after the agreement was executed. Finally, Appellant’s stipulation to the sentence imposed precludes his argument on appeal that the sentence is unreasonable and unconstitutional. Burns (David) v. State, 137 Nev. Adv. Op. No. 50, ___ P.3d ___ (September 23, 2021).

Criminal procedure: (1) While an officer’s failure to complete an inventory per department policy may foreclose the inventory warrant exception, such a failure does not per se establish that an officer’s motive for beginning an inventory was a subterfuge; and (2) here, because the officer’s presence in a vehicle was legally justified at the time he observed contraband, the plain-view exception to the warrant requirement applies. The “plain-view” exception applies when (1) an officer is lawfully present in a place where evidence can be viewed, (2) the item is in plain view, and (3) the item’s incriminating nature is immediately apparent. The issue here was whether a police officer was lawfully present in a vehicle when he entered the car to conduct a standard inventory search but never completed the inventory. The Supreme Court of Nevada found that the officer complied with departmental policy for impounded vehicles when he entered the vehicle to inventory its contents, which he had a legal right and obligation to do. While lawfully present in the vehicle to conduct a standard inventory, the officer saw a firearm and bags of a crystalline-like substance in plain view, and he immediately recognized those items as contraband based on his law-enforcement training. Thus, the plain-view warrant exception applies to validate the officer’s seizure of the items. Jim (Jay) v. State, 137 Nev. Adv. Op. No. 57, ___ P.3d ___ (September 23, 2021).

Criminal procedure: Here, the district court erred in denying the defendant’s motion to withdraw the guilty plea because withdrawal was just and fair, as the defendant had a strong argument that his right to a speedy trial had been violated and a colorable claim that his counsel was ineffective. A district court may grant a defendant’s motion to withdraw his guilty plea before sentencing for any reason where permitting withdrawal would be fair and just, and courts should consider the totality of the circumstances. The following balancing test applies to determine if a defendant’s Sixth Amendment right to a speedy trial has been violated:

            (1) Whether delay before trial was uncommonly long;

            (2) Whether the government or the criminal defendant is more to blame for that delay;

            (3) Whether, in due course, the defendant asserted his right to a speedy trial; and

            (4) Whether he suffered prejudice as the delay’s result.

The defendant made a strong argument that his right to a speedy trial had been violated and the charges against him should be dismissed.The fact that he entered into the guilty plea is the only factual circumstance potentially weighing against him, but he arguably entered into that plea as a result of ineffective assistance of counsel. The Supreme Court of Nevada declared that “if ineffective assistance of counsel resulted in a fair and just reason to withdraw a guilty plea before sentencing, doing so would be appropriate.” Sunseri (Kevin) v. State, 137 Nev. Adv. Op. No. 58, ___ P.3d ___ (September 23, 2021).

Foreclosure: (1) NRS 38.310 requires parties to attempt alternative dispute resolution as a prerequisite to filing a civil action “based upon a claim relating to . . . [t]he interpretation, application or enforcement of any covenants, conditions or restrictions [CC&Rs] applicable to residential property or any bylaws, rules or regulations adopted by an association”; (2) the mere fact that claims arose out of an HOA foreclosure sale is not sufficient to trigger NRS 38.310’s mediation requirement; and (3) mediation is required before a district court can hear a claim that itself requires “interpretation, application or enforcement” of HOA CC&Rs, rules, bylaws, or regulations. Because the tort claims asserted in this matter are unrelated to the interpretation, application, or enforcement of HOA CC&Rs or rules, NRS 38.310’s scope does not encompass those claims. The Supreme Court of Nevada noted that “orders dismissing without prejudice on the basis of failure to comply with NRS 38.310 constitute appealable final orders subject to the jurisdiction of this court on appeal.” The Court also held that “under NRS 38.310, a district court must only dismiss those claims that fall within NRS 38.310’s scope and do not comply with its requirements–leaving any remaining claims to proceed in the court.” Saticoy Bay, LLC Ser. 9720 Hitching Rail v. Peccole Ranch Cmty. Ass’n, 137 Nev. Adv. Op. No. 52, ___ P.3d ___ (September 23, 2021).

Jurisdiction: (1) There is concurrent federal and state jurisdiction over fraudulent-conveyance actions; and (2) unlike subject-matter jurisdiction, a defect as to in rem jurisdiction is a defect that is waived if not timely asserted. Federal district courts have original and exclusive jurisdiction of all cases under title 11, which encompasses the federal bankruptcy provisions. However, “the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11.” Federal district courts may refer all cases arising under title 11 to bankruptcy judges. And “[b]ankruptcy judges may hear and determine all cases under title 11 and all core proceedings arising under title 11.” (emphases added). A “core proceeding” in bankruptcy is one that invokes a substantive right provided by title 11 or . . . a proceeding that, by its nature, could arise only in the context of a bankruptcy case. In contrast, “[n]on-core proceedings’ are those not integral to the restructuring of debtor-creditor relations and not involving a cause of action arising under title 11.” Whether a matter is “core” or “non-core” determines whether the bankruptcy court may enter a final judgment and the appropriate standard of review for that judgment, not whether a state court has jurisdiction. In fact, state and federal courts share concurrent jurisdiction over certain “core” proceedings. The Supreme Court of Nevada assumed without deciding that a fraudulent-conveyance action is a core proceeding, and the Court held that the state district court and the bankruptcy court shared concurrent jurisdiction over the instant fraudulent-conveyance action. Separately, the Court explained that in rem and quasi in rem jurisdiction, like personal jurisdiction, are forms of basis jurisdiction; they are distinct from subject-matter jurisdiction. A defense of lack of personal jurisdiction must be raised in a responsive pleading or it is waived, unlike subject-matter jurisdiction, which may be raised at any time. Given that in rem jurisdiction is analogous to personal jurisdiction, a defendant’s objection to in rem or quasi in rem jurisdiction is waived if not timely asserted. Superpumper, Inc. v. Leonard, 137 Nev. Adv. Op. No. 43, ___ P.3d ___ (September 16, 2021).

Labor Management Reporting and Disclosure Act (LMRDA): Because Nevada’s wrongful- termination claims do not significantly conflict with any concrete federal interest expressed by the LMRDA, the LMRDA does not preempt those claims. The only potentially applicable type of preemption in this matter is conflict preemption. In analyzing whether conflict preemption applies, a court examines the federal statute as a whole to determine whether a party’s compliance with both federal and state requirements is impossible or whether, in light of the federal statute’s purpose and intended effects, state law poses an obstacle to the accomplishment of Congress’s objectives.

Because there is no “clear and manifest” indication of Congress’s intent to preempt wrongful-termination claims, nor a “significant conflict” between the operation of state law and a concrete federal interest, the LMRDA does not preempt Nevada wrongful-termination claims. Clarke v. Serv. Employees Int’l Union C/W 81166, 137 Nev. Adv. Op. No. 46, ___ P.3d ___ (September 16, 2021).

Retroactivity: (1) The Supreme Court of Nevada will not retroactively apply a lengthened limitation period enacted after a claim expired, effectively resurrecting the claim, absent an express statement from the Legislature to that effect; and (2) as the 2019 amendment to NRS 613.430 contains no such statement, the 2019 amendment does not retroactively apply to revive time-barred claims in this matter. After respondent terminated appellant’s employment, appellant sent a letter of inquiry to the Equal Employment Opportunity Commission and ultimately filed a charge of discrimination. The limitation period for appellant’s potential claims against respondent expired on either the day he filed his letter of inquiry or shortly after he requested a right-to-sue letter from the Commission. The Legislature subsequently amended NRS 613.430, providing aggrieved employees an additional 90 days to file a claim after receiving a right-to-sue letter. After the amended statute became effective, appellant filed the underlying district-court complaint, alleging discrimination. Respondent moved for dismissal, arguing that appellant’s claims expired under the former version of NRS 613.430 before that statute was amended and the Legislature’s amendments to the statute did not revive them. Given that the 2019 amendment to NRS 613.430 does not state it applies to claims that expired before the amendment’s effective date, the district court correctly determined that the amendment does not apply to revive appellant’s already-expired claims. Furthermore, appellant failed to establish the requirements for equitable tolling, so the district court properly dismissed appellant’s complaint with prejudice. Salloum v. Boyd Gaming Corp., 137 Nev. Adv. Op. No. 56, ___ P.3d ___ (September 23, 2021).

Sentencing: (1) NRS 176.055(1) requires courts to apply credit for time served in presentence confinement to the defendant’s sentence, “unless the defendant’s confinement was pursuant to a judgment of conviction for another offense”; and (2) where a defendant simultaneously serves time in presentence confinement for multiple cases, and the resulting sentences are imposed concurrently, credit for time served must be applied to each case so the defendant actually receives credit for time served in presentence confinement. At issue here is the portion of NRS 176.055(1) that provides for the award of presentence credit:

            [W]henever a sentence of imprisonment in the county jail or state prison is imposed, the court   may order that credit be allowed against the duration of the sentence, . . . for the amount of time which the defendant has actually spent in confinement before conviction, unless the defendant’s confinement was pursuant to a judgment of conviction for another offense. (Emphasis added.)

A district court should first consider the time spent in actual confinement prior to sentencing, and then consider whether any of that time was spent in confinement pursuant to a judgment of conviction in another case and subtract those days in order to calculate the amount of presentence credit to which the defendant is entitled. “Where a defendant is confined simultaneously on multiple cases before sentencing, and the district court runs the sentence in the second case concurrently to that in the first case, a defendant is entitled to credit for time served on each case up to the date of sentencing in the first case.” White-Hughley (Tyerre) v. State, 137 Nev. Adv. Op. No. 47, ___ P.3d ___ (September 16, 2021).

Sovereign immunity: By enacting NRS 41.031(1), Nevada has consented to damages liability for a State agency’s violation of the minimum-wage or overtime provisions of the federal Fair Labor Standards Act. Here, state employees brought suit in state district court, alleging that the State violated the federal Fair Labor Standards Act (FLSA) and related state law. The Supreme Court of Nevada concluded that “the plain text of NRS 41.031(1) leaves no room for construction: Nevada has waived the defense of sovereign immunity to liability under the FLSA.” The State argued that NRS 41.031(1) waived immunity from tort liability only, so the State retains immunity from statutory liability such as that created by the FLSA. The Supreme Courtdisagreed. If the Legislature meant to pass a law that waived immunity from one category of liabilities only, it could easily have done so expressly but did not. To hold that the State is immune from any claim that does not sound in tort would be a dramatic and atextual curtailment of Nevada’s waiver of sovereign immunity. Doing so would also undermine Nevada’s public policy, reflected in NRS 41.031, that the State should generally take responsibility when it commits wrongs. Echeverria (Nathan) v. State (NRAP 5), 137 Nev. Adv. Op. No. 49, ___ P.3d ___ (September 16, 2021).

Title loans: (1) The extension prohibition on 210-day title loans includes refinances as a species of extension based on the plain language of NRS 604A.065; and (2) the fair-market-value (FMV) limitation in NRS 604A.5076(1) only refers to the principal amount of the loan. NRS 604A.5065 to NRS 604A.5089 regulate title loans, a financial product for which a lender “[c]harges an annual percentage rate of more than 35 percent” and “[r]equires the customer to secure the loan” via title to their vehicle (excluding purchase-money security interests). While NRS 604A.5074(1) generally limits the permissible duration of the original term of a title loan to 30 days, NRS 604A.5074(3) extends the permissible duration to “up to” 210 days, provided that the title loan meets the requirements delineated in that subsection; as relevant here, such loans (210-day title loans) cannot be subject to “any extension.” NRS 604A.5074(3)(c) (the extension prohibition). NRS 604A.5076(1) (the FMV limitation) separately limits the permissible amount of any title loan to the “fair market value” of the securing vehicle. With regard to these two limitations, the Nevada Department of Business and Industry, Financial Institutions Division (FID) argued that (1) a refinance qualifies as a species of extension within the meaning of the extension prohibition and is therefore a prohibited practice for 210-day title loans; and (2) a lender must calculate interest and other costs and fees along with the principal loan amount into the FMV limitation for all title loans. On appeal, the Supreme Court of Nevada agreed with FID on the first point. The unambiguous language of NRS 604A.065 (defining “extension”) includes a refinance such that the extension prohibition reaches the practice at issue here. As to the second point, the Supreme Court found that the text of the FMV limitation demonstrates that only the principal loan amount is included as part of that calculation. State, Dep’t of Bus. and Indus. v. Titlemax of Nev., Inc., 137 Nev. Adv. Op. No. 55, ___ P.3d ___ (September 23, 2021).

Venue: (1) Despite many statutory exceptions which expand venue, the common-law principle that a person should only be charged in a location with sufficient connections to the crime remains; and (2) the State only needs to prove venue by a preponderance of the evidence. Under the statutes governing venue for the offenses allegedly committed in this case, it is not enough to present evidence that may have allowed the grand jury to speculate that intent could possibly have been formed in the charging county, or that an action in the charging county may have been preparatory for the disputed charges. NRS 171.030’s reference to “acts or effects thereof constituting or requisite to the consummation of the offense” does not refer to intent or potentially preparatory acts standing alone. If, however, intent is coupled with an act in furtherance of that intent, then venue may be proper. But there is simply no nonspeculative evidence of that in this matter. Likewise, there is no evidence besides bare speculation that stolen property was taken to the charging county as required by NRS 171.060. Thus, the district court manifestly abused its discretion in denying the defendant’s motion to dismiss the Douglas County charges for lack of venue. Martinez Guzman (Wilber) v. Dist. Ct. (State), 137 Nev. Adv. Op. No. 61, ___ P.3d ___ (September 30, 2021).

Nevada Court of Appeals:

Divorce: Federal law prohibits state courts from ordering reimbursement and indemnification from a veteran’s disability payments for the purpose of offsetting military pension waivers. In this case, the Court of Appeals recognized that, under federal law, only a veteran’s net disposable retirement pay is divisible as community property, whereas his or her waived amount, taken in the form of disability pay, is not community property subject to such division. Separately, the Court held that “the district court must consider the relevant good cause factors and the policy in favor of allowing parties to appear via audiovisual transmission when considering such a request.” When a party is required to appear personally for a show-cause hearing but seeks to appear via audiovisual equipment for a separate hearing, like an evidentiary hearing, the district court can bifurcate the show-cause hearing from the pending substantive motions. In such a case, the district court can continue the hearing on the order to show cause to a date when the party can appear in person, while still permitting the party to appear remotely for the evidentiary hearing only, to ensure the party can meaningfully participate in the evidentiary hearing. Finally, the Court addressed NRCP 60(b), which allows for relief from a judgment for enumerated reasons. Rule 60(b)(6) is available only in “extraordinary circumstances” “which are not addressed by the first five numbered clauses of the Rule and only as a means to achieve substantial justice.” In other words, NRCP 60(b)(6) provides an independent basis for relief that is mutually exclusive of clauses (1)-(5). Byrd v. Byrd, 137 Nev. Adv. Op. No. 60, ___ P.3d ___ (September 30, 2021).


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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