Nevada Appellate Court Summaries (3-8-22)

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

Supreme Court of Nevada

Arbitration: (1) NRS 597.995 requires any agreement that includes an arbitration provision to also include a specific authorization for that provision, or the provision is void; and (2) because NRS 597.995 singles out and disfavors arbitration provisions by imposing stricter requirements on them than on other contract provisions, the Federal Arbitration Act (FAA)preempts NRS 597.995 in cases involving interstate commerce. Most courts have concluded that nursing-home residency contracts implicate interstate commerce, as such “contracts usually entail providing residents with meals and medical supplies that are inevitably shipped across state lines from out-of-state vendors.” Similarly, many courts have noted that health care is an activity that represents a general practice subject to federal control. These and other cases show that residency home contracts implicate the FAA where they regard supplies that are shipped across state lines or involve the use of federal funding.The record in the instant case supports that the applicable contract falls under the FAA’s purview. Thus, the FAA governs and preempts NRS 597.995. Maide, LLC v. Dileo, 138 Nev. Adv. Op. No. 9, ___ P.3d ___ (February 24, 2022).

Civil procedure: (1) Governor Steve Sisolak’s Emergency Directive 009 (Revised) did not apply to deadlines established by court rules because court rules are neither statutes nor regulations pertaining to the commencement of a legal action; and (2) more specifically, the Emergency Directive did not toll the 120-day service period established by NRCP 4(e). NRCP 4 permits a plaintiff to request an extension of time to serve process on a defendant if the plaintiff is unable to serve the defendant within a 120-day period. In 2020, Governor Sisolak issued Emergency Directive 009 (Revised), which, among other things, tolled any specific time limits set by statute or regulation pertaining to the commencement of any legal action until 30 days from the date the state of emergency was terminated. In this opinion, the Supreme Court of Nevada emphasized that the Emergency Directive tolled “[a]ny specific time limit set by state statute or regulation for the commencement of any legal action” (emphasis added). A regulation refers to any rule or adjudication made by an executive-branch entity and does not encompass the rules promulgated by the Supreme Court of Nevada. Cervantes-Guevara v. Dist. Ct. (Anderson), 138 Nev. Adv. Op. No. 10, ___ P.3d ___ (March 3, 2022).

Public utilities: (1) Private entities operate Nevada’s public utilities, but a public commission sets the maximum rates they can charge for their retail services, subject to judicial review; (2) here, a utility provider attempted to recover its expenses and sought an increased rate of return on equity (ROE), but the commission questioned several seemingly inappropriate charges for which the utility requested compensation; (3) the commission determined that the utility did not justify the expenses it sought to recover, and as a result, the commission denied the utility’s request for reimbursement and set a return on equity lower than what the utility had requested; (4) on appeal, the Supreme Court of Nevada held that utilities do not enjoy a presumption of prudence with respect to the expenses they incur; rather, the utility must show that the expenses were prudently incurred; (5) additionally, the Court declined to adopt the “constitutional-fact” doctrine, which would have required the Court to review agency decisions de novo when a regulated party’s constitutional rights are implicated; (6) furthermore, the Court determined that the commission’s rate-setting procedures met due-process requirements and that the ROE the Public Utilities Commission (PUC) selected was not a confiscatory taking; and (7) the Court concluded that the Commission’s decision to disallow the utility to recover certain project expenses and additional pension expenses was supported by substantial evidence. Southwest Gas Corporation (SWG) provides natural gas to customers and is regulated by the PUC. In May 2018, SWG filed a general rate application with the PUC, seeking to increase the service rates it charges to customers. In its application, SWG sought a rate that would allow it to recover, among other things, the costs of five software upgrade projects, adjusted pension expenses, and a 10.30% ROE. The Supreme Court of Nevada later addressed several issues. First, the Court found that Nevada does not recognize the “constitutional-fact” doctrine. Determining rates is a unique decision that does not fall neatly into traditional categories of findings of fact, conclusions of law, or even mixed questions of law and fact. Rather, within broad constitutional limits, “[t]he methods used by a regulatory body in establishing just and reasonable rates of return are generally considered to be outside the scope of judicial inquiry.” Second, the Court concluded that SWG was not entitled to a rebuttable presumption of prudence. The current regime, by which the utility must demonstrate the prudence of the expenses it seeks to recover, makes sense. The utility has information necessary to display the prudence of expenses; the current framework merely requires them to submit these records. Third, the Court found that PUC’s rate-setting procedures conformed to due-process requirements because SWG was provided both “notice and an opportunity to be heard” with respect to both the normalization issue and the discount rate. Southwest Gas Corp. v. Pub. Utilities Comm’n of Nev., 138 Nev. Adv. Op. No. 5, ___ P.3d ___ (February 17, 2022).

Torts: (1) Appellant Larry Porchia alleged that EMTs denied him medical treatment and transportation to the hospital after negligently misdiagnosing him and/or because he was homeless and uninsured; and (2) “accepting Porchia’s allegations as true, a failure to render medical assistance or to transport a patient to the hospital based solely on their socioeconomic status may qualify as an affirmative act exempted from the public-duty doctrine and as gross negligence, which would render the Good Samaritan statute inapplicable.” The public-duty doctrine is codified in NRS 41.0336, which provides that public officers called to assist in an emergency are not liable for their negligent acts or omissions unless one of two exceptions is applicable. To have invoked the affirmative-harm exception to the public-duty doctrine, Porchia must have alleged facts that, when taken as true, demonstrate that the EMTs in this case created a situation that led directly to Porchia’s alleged harm and that their actions “actively and continuously” operated to bring about harm.Because all of Porchia’s factual assertions in his amended complaint must be accepted as true, the Court was required to accept as true his allegation that the EMTs removed him from the stretcher upon learning that he was homeless and uninsured and refused to transport him based on his socioeconomic status. If these facts are supported by evidence, they would establish an affirmative action by the EMTs, not a mere omission/misdiagnosis. Therefore, the facts alleged met the affirmative-harm exception to the public-duty doctrine. Separately, the Court addressed NRS 41.500(5) and found that Porchia’s factual claims may be sufficient to assert that the actions of the EMTs amounted to gross negligence, rendering the application of Good Samaritan protection under the statute improper. Porchia v. City of Las Vegas, 138 Nev. Adv. Op. No. 4, ___ P.3d ___ (February 17, 2022).

Nevada Court of Appeals

Child relocation: (1) NRS 125C.007(1)(b) requires a district court to make specific findings regarding whether relocation would be in the best interests of the child–which should include the custody best-interest factors–and tie those findings to its conclusion; and (2) the applicable burden of proof for the threshold test is preponderance of the evidence. NRS 125C.007(1)(b) does not define “best interests of the child” in this context. The Court of Appeals concluded that NRS 125C.007(1)(b) requires the district court to make specific findings that relocation would be in the best interests of the child and tie those findings to its conclusion. This interpretation of best interests strikes the appropriate balance between preserving the noncustodial parent’s relationship with the child and not unduly restricting the custodial parent from pursuing life outside Nevada. The district court has discretion in determining how to decide the child’s best interests, but it still must make findings as to all three threshold provisions under NRS 125C.007(1), plus the six relocation factors under NRS 125C.007(2) if the relocating parent demonstrates the threshold provisions, under a preponderance-of-the-evidence standard. Monahan v. Hogan (Child Custody), 138 Nev. Adv. Op. No. 7, ___ P.3d ___ (February 24, 2022).

Guardianship: (1) NRS 159.344 governs the award of attorney fees in guardianship cases where the guardian requests the protected person’s estate to pay attorney fees; (2) while granting attorney fees in this way is disfavored under NRS 159.344, the district court may require the protected person’s estate to pay attorney fees if the guardian makes a persuasive showing under the statute’s 14-factor framework; and (3) here, the district court did not abuse its discretion when it elected to award fees from the estate and set the amount of those fees. NRS 159.344 begins with a presumption that guardians are personally liable for their own fees. Fees are awardable from the protected person’s estate, but only if sought by petition and the court concludes the statutory requirements support a finding that fees are just, reasonable, and necessary. NRS 159.344(5) sets forth several factors to determine when fees are just, reasonable, and necessary. Among these factors, the district court may consider (1) whether the guardian’s attorney conferred a benefit on the protected person; (2) the character of the work performed, including its difficulty; (3) the result of the work; and (4) any other factor that may be considered relevant. Here, the Court of Appeals affirmed the district court’s award of attorney’s fees after applying the factors. In re: Guardianship of Jones, 138 Nev. Adv. Op. No. 6, ___ P.3d ___ (February 24, 2022).

Work product: (1) This interlocutory writ petition arose from a personal-injury action in which the petitioner asserted that the district court improperly ordered that three surveillance videos and two related reports created by its insurance company’s investigators were subject to discovery and not protected from disclosure as “work product” under NRCP 26(b)(3); (2) the Court of Appeals concluded that the first two videos and related report are not protected work product because their production was not directed by counsel; and (3) the Court of Appeals could not reach a conclusion as to the ultimate discoverability of the third video and accompanying report because, while they were created at the direction of counsel after the suit was commenced and thus constitute work product, the district court did not analyze whether they may nonetheless be discoverable upon a showing of substantial need and undue hardship. Insurance investigation materials are created in anticipation of litigation, and are therefore protected work product, only when they are created at the direction of counsel under circumstances demonstrating that counsel’s involvement was reasonable and not for the mere strategic purpose of obtaining work-product protection for routinely created materials. Here, the first two videos and related report are not protected work product and should be produced. The third video and its related report are protected by the work-product doctrine under NRCP 26(b). However, when materials meet the requirements for protection under the work-product doctrine, they may still be subject to discovery upon a showing by the requesting party of substantial need and undue hardship under NRCP 26(b)(3)(A). Thus, if the record demonstrates that this exception is met, then the third video and related report are discoverable regardless of whether the work-product doctrine applies to them. Keolis Transit Servs., LLC v. Dist. Ct. (Toth), 138 Nev. Adv. Op. No. 8, ___ P.3d ___ (February 24, 2022).


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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