Nevada Appellate Court Summaries (12-2-21)

Check out these summaries of recent opinions from the Nevada Appellate Courts, as compiled by Joe Tommasino, Esq.

Supreme Court of Nevada

Anti-SLAPP statutes: (1) Under NRS 41.660(3)(a), a moving party’s denial has no relevance at step one of the anti-SLAPP evaluation; (2) here, the movant has not attempted to show that the alleged statement was true or made without knowledge of its falsehood, so he has not established by a preponderance of the evidence that his statement was made in good faith; and (3) the movant’s alleged statement cannot be classified as a nonactionable opinion. NRS 41.635-.670 are commonly referred to as Nevada’s “anti-SLAPP” statutes, which stands for “anti-Strategic Lawsuit Against Public Participation.” Generally speaking, the anti-SLAPP statutes provide a two-step procedural mechanism by which a district court, upon a party’s special motion to dismiss, can summarily dismiss a meritless lawsuit aimed at chilling speech. Under step one of the anti-SLAPP evaluation, the district 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.” Because a moving party’s denial that he or she made the alleged statements has no relevance at step one of the anti-SLAPP evaluation, the district court correctly assumed the accuracy of the plaintiff’s version of the defendant’s alleged defamatory statement for purposes of conducting the step-one evaluation. Spirtos v. Yemenidjian, 137 Nev. Adv. Op. No. 73, ___ P.3d ___ (December 2, 2021). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Construction defect: (1) Assembly Bill (A.B.) 421 (2019) became effective on October 1, 2019; (2) as of that date, the NRS 11.202 statute of repose for filing construction-defect claims was ten years from substantial completion of the project; and (3) that change in the law applied retroactively. On June 3, 2019, the Governor signed into law A.B. 421 (2019), which amended NRS 11.202’s statute of repose from six years to ten years. A.B. 421 (2019) also provided that “[t]he period of limitations on actions set forth in NRS 11.202, as amended by section 7 of this act, apply retroactively to actions in which the substantial completion of the improvement to the real property occurred before October 1, 2019.” While A.B. 421 (2019) was signed into law on June 3, 2019, the amendment of the statute of repose did not become effective until October 1, 2019. NRS 218D.330(1) provides that “[e]ach law and joint resolution passed by the Legislature becomes effective on October 1 following its passage, unless the law or joint resolution specifically prescribes a different effective date.” A.B. 421 (2019) did not prescribe a different effective date for the amendment to the statute of repose. Further, even though the amendment to the statute of repose was explicitly applicable retroactively, a retroactive-application provision does not alter a bill’s effective date. Thus, the amended statute of repose in A.B. 421 (2019) became effective on October 1, 2019, and was not retroactive until that date. As soon as A.B. 421 (2019) became law on October 1, 2019, all construction-defect actions filed within ten years of substantial completion of the project were no longer time-barred. Panorama Towers Condo. Unit Owners’ Ass’n v. Hallier, 137 Nev. Adv. Op. No. 67, ___ P.3d ___ (November 10, 2021). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Criminal procedure: (1) Unusual, historic circumstances can require unusual, temporary accommodations in a criminal case; therefore, the defendant was not denied a fair and just sentencing hearing where a pandemic made his physical presence at the hearing unsafe and he was provided with an alternative via Zoom; (2) applying the analysis from Franks v. State, 135 Nev. 1, 432 P.3d 752 (2019), the district court did not err in admitting evidence of the defendant’s prior conviction for battery with intent to commit sexual assault; (3) while district courts should not categorically limit inquiry during voir dire into jurors’ views regarding defendants with prior convictions, the district court did not err in this regard here when it barred inquiry into their views as to the defendant’s prior conviction because that would have risked having jurors prejudge the evidence, depriving the defendant of an impartial jury; and (4) inconclusive DNA evidence may be admitted where relevant and otherwise in accord with evidence rules. First, the presence of a defendant is a condition of due process “to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.” Here, the sentencing hearing was fair and just despite its unorthodoxy. The defendant was able to be heard, to be seen, to confidentially communicate with counsel, and to speak on the record. Given the limited possibilities created by unprecedented emergency circumstances, a fair and just hearing was not thwarted by the defendant’s absence from the courtroom. Second, in determining whether to admit a prior sexual offense pursuant to NRS 48.045(3), the district court must (1) make a preliminary finding that the prior sexual offense is relevant, and (2) find that a jury could reasonably find by a preponderance of the evidence that the bad act constituting a sexual offense occurred. The district court should evaluate whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice by considering such factors as “the frequency of the prior acts.” Third, that the defendant was previously convicted of the same offense he stood accused of had significant potential to influence the jury. This posed a serious risk of causing jurors to prejudge the facts of the case. Thus, the line of questioning risked depriving the defendant of an impartial jury. The defendant could have protected his interest in ensuring that jurors apply the law to the facts of the case by voir dire questions regarding a potential juror’s perspective on defendants with prior convictions, without specifically inquiring into his own previous conviction. Fourth, inconclusive DNA evidence may be relevant to show that police conducted a thorough investigation. The Supreme Court of Nevada agreed that “[i]nconclusive results may be of minimal probative value to a defendant’s guilt or innocence, but they may be relevant to show the jury the thoroughness of the steps taken by law enforcement in order to investigate the victim’s account.” Independent from the relevance of showing a thorough investigation, inconclusive evidence may be relevant to the State’s presentation of a complete story regarding a particular piece of evidence. Chaparro (Osbaldo) v. State, 137 Nev. Adv. Op. No. 68, ___ P.3d ___ (November 10, 2021). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Disqualification: (1) Once a party files a motion to disqualify a judge pursuant to the Nevada Code of Judicial Conduct, that judge can take no further action in the case until the motion to disqualify is resolved; and (2) if the motion is granted and the judge is disqualified, any order entered by the judge after the motion to disqualify was filed is void. Voiding the orders of a judge whose impartiality has reasonably been questioned promotes confidence in the judiciary. While courts have split on whether orders entered by disqualified judges are void or merely voidable, the Supreme Court of Nevada concluded that “the order, entered after disqualifying acts arose and [the] motion to disqualify was filed, is properly deemed void.” Debiparshad, M.D. v. Dist. Ct. (Landess), 137 Nev. Adv. Op. No. 71, ___ P.3d ___ (December 2, 2021). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Firearms: (1) NRS 41.131(1) provides that “[n]o person has a cause of action against the manufacturer or distributor of any firearm or ammunition merely because the firearm or ammunition was capable of causing serious injury, damage or death”; (2) currently pending in Nevada’s federal district court is a suit brought by the parents of a victim of the Route 91 Harvest Festival massacre against the manufacturers and distributors of the AR-15 rifles the gunman used, and the federal court has determined that the complaint plausibly alleges that the AR-15’s violated state and federal machinegun prohibitions; and (3) the Supreme Court of Nevada held that the allegation of illegality does not allow the parents’ wrongful-death and negligence-per-se claims to proceed, despite the immunity NRS 41.131(1) declares. As written, NRS 41.131 provides the gun manufacturers and distributors immunity from the claims asserted against them under Nevada law. The Supreme Court acknowledged the horrific nature of the related mass shooting. Nevertheless, “[i]f civil liability is to be imposed against firearm manufacturers and distributors in the position of the gun companies in this case, that decision is for the Legislature, not this court.” The Court urged the Legislature to act if it did not mean to provide immunity in situations like this. Parsons v. Colt’s Manufacturing Company, LLC (NRAP 5), 137 Nev. Adv. Op. No. 72, ___ P.3d ___ (December 2, 2021). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Insurance: Evidence of a defendant’s liability insurance is admissible under NRS 48.135(2) if the defendant first introduces evidence suggesting its inability to pay a judgment. Here, the defendant first introduced evidence of its bankruptcy, thereby suggesting that it was unable to pay a judgment in plaintiff’s favor. To cure the resulting prejudice, the district court appropriately instructed the jury that the defendant had liability insurance to satisfy any potential judgment. Separately, the Supreme Court held that a plaintiff represented on a contingency-fee basis may recover the entirety of the contingency fee as post-offer attorney fees under NRCP 68. The Court indicated that district courts may award NRCP 68 attorney fees based on a contingency-fee agreement without billing records so long as the party seeking fees satisfies factors from Beattie v. Thomas, 99 Nev. 579, 668 P.2d 268 (1983), and Brunzell v. Golden Gate Nat’l Bank, 85 Nev. 345, 455 P.2d 31 (1969). The Supreme Court clarified that a district court may award the entire contingency fee as post-offer attorney fees under NRCP 68 because the contingency fee does not vest until the client prevails. A contingency fee is contingent on the plaintiff prevailing, which will happen only after an offer of judgment is rejected. The Court’s holding is consistent with public-policy justifications supporting contingency-fee agreements, as the contingency-fee-based award properly serves as punishment for rejecting a reasonable offer of judgment. Capriati Constr. Corp., Inc. v. Yahyavi C/W 80821, 137 Nev. Adv. Op. No. 69, ___ P.3d ___ (November 10, 2021 ). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Tolling: (1) A proceeding before a citizen review board (CRB) does not warrant tolling the statute of limitations under State, Department of Human Resources v. Shively, 110 Nev. 316, 871 P.2d 355 (1994), because participation in the proceeding was not mandatory; and (2) the equitable-tolling doctrine does not apply here because appellant failed to demonstrate that he acted diligently and that an extraordinary circumstance prevented him from timely filing his civil complaint in district court. Nothing in the statutes relating to the CRB provides that participation in the CRB process is mandatory, a prerequisite to filing a lawsuit, or binding on the police officer’s employer. Thus, nothing prevented the appellant from filing his civil complaint before the completion of the CRB process, and the CRB proceeding did not toll the statute of limitations under Shively. The threshold requirements for equitable tolling of NRS 11.190(4)(e)’s limitations period are the following: (1) the plaintiff exercised diligence in pursuing his or her claims, and (2) some extraordinary circumstance prevented the plaintiff from bringing a timely action. Here, without explanation, the appellant waited more than a year after the CRB made its decision before he filed his complaint in district court, and the statute of limitations barred the appellant’s complaint. Wilson v. Las Vegas Metro. Police Dep’t, 137 Nev. Adv. Op. No. 70, ___ P.3d ___ (November 18, 2021). 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).

Discover more from Clark County Bar Association

Subscribe now to keep reading and get access to the full archive.

Continue reading