Nevada Appellate Court Summaries (4-4-24)

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

Anti-SLAPP statute: (1) NRS 41.660, Nevada’s “anti-SLAPP” statute, permits a “person” to file a special motion to dismiss when the complaint is based on the person’s “good faith communication in furtherance of … the right to free speech in direct connection with an issue of public concern”; and (2) a governmental entity is not a “person” in this context. NRS 0.039 unambiguously defines “person” to exclude governmental entities. The context of NRS 41.660 does not require that “person” as used in that statute be construed to include governmental entities. Clark County v. 6635 W Oquenda LLC, 140 Nev. Adv. Op. No. 15, ___ P.3d ___ (March 14, 2024).

Attorney-client privilege: (1) A defendant’s call to a defense investigator that is routed through a three-way call is, alone, insufficient to establish waiver of the attorney-client privilege, absent a showing that the third party remained present during the conversation; and (2) violation of jail telephone policies does not waive attorney-client privilege. The attorney-client privilege encompasses communications with a representative of the attorney, which includes a defense investigator. A defendant who asserts a privilege bears the burden of showing that the evidence is privileged and that the defendant has not waived that privilege. In the instant case, the district court was persuaded that the defendant’s communications were not privileged, or that he had waived any privilege, because he connected his call to the investigator using three-way calling and violated the detention center’s rules by using another inmate’s access code. The Supreme Court of Nevada disagreed. First, the Court could not say that the defendant’s violation of detention-center rules prohibiting using another inmate’s access code resulted in a waiver of the attorney-client privilege. Violation of jail policy alone does not inform the analysis of whether a defendant intended for an attorney-client conversation to be confidential or whether the privilege is waived. Second, the Court could not conclude that use of three-way calling alone resulted in waiver of the privilege. Absent a waiver, the communication between the defendant and the defense investigator was a confidential communication protected by attorney-client privilege. The investigator’s role was to assist counsel in preparing a defense, and the defendant’s communications with him concerned the defendant’s whereabouts during the shooting, a material matter. The record does not indicate that the three-way calling method used to communicate with the investigator rendered the conversation nonconfidential. Generally, communications between a client and counsel in the presence of a third party lack confidentiality. The presence of a third party implies that the client did not intend the communication to be confidential. Here, nothing in the record shows a third party listened to or participated in the call. Although a third party was used to connect the call, the transcript of the call does not indicate that the third party listened to or participated in the conversation. The district court failed to hold an evidentiary hearing to gather additional evidence regarding waiver, and the district court abused its discretion in concluding that the conversation with the investigator was not protected by attorney-client privilege. Gibbs v. State, 140 Nev. Adv. Op. No. 13, ___ P.3d ___ (March 7, 2024).

Attorney’s fees: While a movant must comply with NRCP 11(c)(2) requirements for the district court to impose sanctions under Rule 11, those requirements do not apply to independent sanctioning mechanisms such as NRS 18.010(2)(b) and NRS 7.085. Under NRCP 11, parties certify through their signature that papers presented to the court are, to the best of the party’s belief and knowledge, not presented for an improper purpose and not unwarranted or frivolous, and that factual assertions and denials are supported and warranted by evidence. If a party files papers for an improper purpose or frivolously engages in litigation, that party may be sanctioned under NRCP 11(c). The movant seeking sanctions must comply with the rule’s procedural requirements, commonly referred to as the safe-harbor provision. The provision requires the movant to file its motion for sanctions “separate from any other motion,” and the motion “must not be filed … if the challenged paper … is withdrawn or appropriately corrected within 21 days after service.” The prevailing party may then be awarded “reasonable expenses, including attorney fees, incurred for presenting or opposing the motion.” Here, the Supreme Court had to determine whether procedural requirements in NRCP 11(c)(2) apply to NRS 18.010 and NRS 7.085. NRS 18.010(2)(b) provides for the recovery of attorney fees “when the court finds that the claim, counterclaim, or third-party complaint or defense of the opposing party was brought or maintained without reasonable ground or to harass the prevailing party.” NRS 7.085 provides for recovery of attorney fees, from the offending attorney personally, when “an attorney has filed, maintained, or defended a civil action … not well-grounded in fact .. . or unreasonably and vexatiously extended a civil action.” Both statutes state that “[i]t is the intent of the legislature that the court award costs, expenses, and attorney’s fees pursuant to this [statute] andimpose sanctions pursuant to Rule 11 of the Nevada Rules of Civil Procedure in all appropriate situations.” NRCP 11 does not supersede NRS 7.085. NRCP 11 and NRS 7.085 are “distinct, independent mechanism[s] for sanctioning attorney misconduct” because they apply to different types of misconduct. The same is true of NRCP 11 and NRS 18.010(2)(b); each is a distinct sanctioning mechanism. The Legislature chose not to incorporate a safe-harbor provision similar to NRCP 11 in either NRS 18.010(2)(b) or NRS 7.085. Thus, the district court erred in applying the procedural bar in NRCP 11(c)(2) to NRS 18.010 and NRS 7.085. LaMont’s Wild W. Buffalo, LLC v. Terry, 140 Nev. Adv. Op. No. 11, ___ P.3d ___ (March 7, 2024).

Community property: Courts must consider the totality of circumstances when determining whether a disputed business interest represents a new acquisition or purchase subject to the community-property presumption or merely the continuation of a spouse’s preexisting enterprise and thus separate property, subject to a subsequent apportionment. This divorce case involves a law firm established by the husband before marriage and incorporated under a different name during marriage. Under the totality of circumstances, the law firm’s incorporation alone does not show that it was a newly acquired community-property business, and the undisputed evidence makes clear that the law firm is simply a continuation of the husband’s pre-marriage legal practice. Thus, the law firm is the husband’s separate property, but on remand the wife may show by clear and convincing evidence that growth in the business during the marriage is attributable to community resources, such that apportionment is appropriate. Draskovich v. Draskovich, 140 Nev. Adv. Op. No. 17, ___ P.3d ___ (March 21, 2024).

Drug court: NRS 176A.240(6)(a) removes judicial discretion in cases where a defendant fulfills the terms and conditions of probation pursuant to a drug court program and satisfies the statutory requirements. Because the defendant in this case satisfied those conditions and met both requirements under NRS 176A.240(6)(a), the district court had no discretion to deny the motion to set aside the judgment of conviction. Accordingly, the district court failed to perform a duty required by law. Kabew v. Eighth Jud. Dist. Ct., 140 Nev. Adv. Op. No. 20, ___ P.3d ___ (March 28, 2024).

Foreclosure: Instituting judicial foreclosure proceedings does not trigger the 10-year time frame in NRS 106.240. NRS 106.240 provides that certain liens on real property are automatically cleared from the public records after a specified period of time. More precisely, the statute provides that a lien that is created by a mortgage or deed of trust on real property is conclusively presumed to be discharged “10 years after the debt secured by the mortgage or deed of trust according to the terms thereof or any recorded written extension thereof become wholly due.” The Supreme Court of Nevada held in LV Debt Collect, LLC v. Bank of New York Mellon, 139 Nev., Adv. Op. 25, 534 P.3d 693 (2023), that recording a notice of default to institute nonjudicial foreclosure proceedings does not trigger NRS 106.240’s 10-year time frame. In this opinion, and for reasons similar to those in LV Debt Collect, the Court clarified that instituting judicial foreclosure proceedings likewise does not trigger the 10-year time frame. This conclusion is consistent with policy considerations set forth in LV Debt Collect, in that applying NRS 106.240 to security interests that are the subject of pending litigation would be “incongruous with the statute’s purpose” and would encourage property owners to “engage in run-out-the-clock gamesmanship” by prolonging a judicial foreclosure action until NRS 106.240’s 10-year period expires. Posner v. U.S. Bank Nat’l Ass’n, 140 Nev. Adv. Op. No. 22, ___ P.3d ___ (April 4, 2024).

Juveniles: NRS 62C.230’s incorporation of NRS 62C.200(1)(a)’s prosecutorial-consent requirement does not violate the separation of powers doctrine. When a juvenile court exercises the option to dismiss a petition under NRS 62C.230, it is not exercising its sentencing discretion. Rather, the option to dismiss a petition without prejudice and refer a juvenile to informal supervision under NRS 62C.230 is more akin to a charging decision. Therefore, the requirement for the written approval of the district attorney before a juvenile court can dismiss a petition at this stage is not an unconstitutional prosecutorial veto and does not run afoul of the separation of powers doctrine. In re I.S., 140 Nev. Adv. Op. No. 18, ___ P.3d ___ (March 28, 2024).

Medical malpractice: Hospitals owe no fiduciary duty to their patients in connection with medical treatment. Without the patient demonstrating more in a particular instance, the relationship between an emergency-room provider and a patient does not exhibit the degree of trust or confidence exceeding that of a routine business relationship in which parties must exercise simply reasonable care for each other. Recognizing a claim for breach of fiduciary duty against a hospital in relation to a patient’s medical care would be duplicative, and improper, where the allegation boils down to one of medical malpractice by the hospital. Separately, the Supreme Court emphasized that prejudgment interest cannot be awarded on future damages, and “[i]t is error to award prejudgment interest for the entire verdict when it cannot be determined what part of the verdict represents past damages.” Valley Health Sys., LLC v. Murray, 140 Nev. Adv. Op. No. 14, ___ P.3d ___ (March 14, 2024).

Patient Safety and Quality Improvement Act of 2005 (PSQIA): (1) This opinion addresses the privilege created by the federal Patient Safety and Quality Improvement Act of 2005 (PSQIA), 42 U.S.C. §§ 299b-21-299b-26, that applies to information that qualifies as patient safety work product; and (2) under the PSQIA, identifiable patient safety work product is privileged from discovery in civil proceedings, and the privilege cannot be waived. The PSQIA provides that “patient safety work product shall be privileged and shall not be … subject to discovery … [or] admitted as evidence in any Federal, State, or local governmental civil proceeding.” Patient safety work product comes in two categories: identifiable and nonidentifiable. This opinion concerns the privilege regarding identifiable patient safety work product. There are only a few exceptions to PSQIA privilege for identifiable patient safety work product: in certain criminal proceedings, in civil actions brought by a good-faith reporter, or when every medical provider identified in the work product authorizes disclosure. None of those exceptions apply here. The district court found that a hospital could waive the PSQIA’s grant of privilege over patient safety work product; however, it erred in doing so by abusing the negative-implication canon to create a necessary condition for privilege where none exists in the PSQIA’s implementing regulation. The regulation, 42 C.F.R. § 3.208, states that patient safety work product disclosed in accordance with 42 C.F.R. § 3.204(b)(1) or disclosed impermissibly shall remain privileged. The district court interpreted this regulation to mean that patient safety work product disclosed permissibly shall not remain privileged. This incorrect maneuver was logically invalid. The plain language of the regulation describes when patient safety work product continues to remain privileged. It does not purport to describe when patient safety work product shall be excepted from privilege, as the implementing regulations cover those exceptions in a different section. The negative-implication canon should not be applied to 42 C.F.R. § 3.208 because it creates an exception to privilege far broader than the exceptions to privilege explicitly carved out elsewhere in the PSQIA and implementing regulations. The Supreme Court determined that the PSQIA privilege is absolute. Federal courts tasked with determining whether PSQIA privilege extends over alleged patient safety work product ask two questions. The only factors bearing on whether identifiable patient safety work product may be privileged under the PSQIA are (1) whether the materials were created for the purpose of reporting to a patient safety organization and (2) whether they were so reported. If they are so privileged, then courts must consider whether one of the exceptions made explicit by 42 C.F.R. § 3.204(b) applies. Because the PSQIA does not contemplate waiver of the privilege over identifiable patient safety work product, such a privilege cannot be waived. Sunrise Hosp. v. Eighth Jud. Dist. Ct., 140 Nev. Adv. Op. No. 12, ___ P.3d ___ (March 7, 2024).

Restitution: (1) An order of restitution must be based on competent evidence; and (2) here, the district court failed to evaluate whether a defendant’s restitution obligation to the State of Nevada Victims of Crime Program (Victims of Crime) should be offset by the amount the defendant’s insurance provider paid to the victim for the same losses. A judgment of conviction must include a final and specific determination as to restitution and may not purport to reserve such a determination for later. Before entering a judgment of conviction– a final judgment–a district court must review the evidence and state the amount of restitution it will order. Additionally, restitution awards to Victims of Crime must be offset by compensation victims receive through the defendant’s insurer when the payments cover the same losses. A district court must evaluate whether a civil settlement and a restitution award to Victims of Crime would compensate victims for the same losses and thus whether an offset is needed. Gee v. State, 140 Nev. Adv. Op. No. 16, ___ P.3d ___ (March 21, 2024).

Search warrants: (1) Under Nevada law, an affidavit may be incorporated into a warrant to establish probable cause, but that affidavit cannot expand the scope of the search and seizure permitted under the warrant’s specific language; (2) absent an exception, officers must search only the places authorized on the face of the warrant; and (3) if exigent circumstances allow the warrantless seizure of a cell phone, police may not search the data on that cell phone unless a new warrant is obtained or exigent circumstances independently justify the search of the data. Allowing an affidavit to expand the scope of a warrant “would permit a kitchen sink probable cause affidavit to overrule the express scope limitations of the warrant itself.” Thus, an incorporated probable-cause affidavit cannot broaden a warrant’s narrower description of those places or persons to be searched or of the items to be seized, as doing so would violate the particularity requirements of both the United States and Nevada Constitutions. Moreover, the good-faith exception does not apply to the improper execution of a valid warrant, and no exigent circumstances justified the forensic search of the defendant’s cell phone after officers seized it. Suppression of the evidence from the defendant’s cell phone is required to ensure that the government does not benefit from the evidence it obtained illegally. Smith v. State, 140 Nev. Adv. Op. No. 19, ___ P.3d ___ (March 28, 2024).

Sexual assault: (1) A change in sexual position alone is insufficient to show that the resulting sexual acts constitute more than one sexual-assault offense; (2) appellate counsel’s omission of a sufficiency challenge to the multiple convictions fell below an objective standard of reasonableness in this case; and (3) because the sufficiency challenge stood a reasonable probability of success had it been raised on appeal from the judgment of conviction, the defendant was prejudiced by the omitted challenge. Separate and distinct acts of sexual assault may be charged as separate counts and result in separate convictions even though the acts were the result of a single encounter and all occurred within a relatively short time. For example, where acts of sexual assault occurring during a single encounter involve different types of penetration, each different type of penetration necessarily constitutes a separate and distinct sexual offense. By contrast, when the acts of sexual assault occurring during a single encounter involve the same type of penetration, the acts support only one sexual-assault conviction absent an interruption and subsequent reinitiation of activity.Thus, Nevada law makes clear that “multiple acts of the same type of penetration, even when performed in multiple sexual positions, are not separate and distinct sexual assaults when the encounter is continuous and there is no break or interruption between the acts.” Separately, the Court emphasized that a victim in a sexual-assault case must testify with some particularity about the incident and there must be some reliable indicia that the number of acts charged actually occurred. Here, the victim’s testimony did not reveal the amount of time that passed between positions, if any, or how transitions occurred. She could not remember specific events, actions, or statements tending to show interruption in the defendant’s conduct. Even viewing the evidence in the light most favorable to the State, no rational trier of fact could have found beyond a reasonable doubt that each sexual position amounted to a separate and distinct sexual act. Ortiz v. State, 140 Nev. Adv. Op. No. 23, ___ P.3d ___ (April 4, 2024).

Nevada Court of Appeals

Coercion: (1) Under NRS 207.190(2), criminal coercion is punishable as a felony if carried out using physical force or the immediate threat of physical force; however, absent the use or immediate threat of physical force, coercion is punishable as a misdemeanor; and (2) the Nevada Legislature intended for the distinguishing statutory element of “physical force” to be limited to force against a person, rather than against property. The Court of Appeals emphasized the importance of giving proper jury instructions for the essential elements of a crime. “Doing so is particularly important where, as here, the jury’s consideration of the essential element of physical force, without proper instruction, resulted in a felony conviction.” Separately, the Court explained that the criminal charge of injuring or tampering with a motor vehicle is punishable according to the extent of property damage caused.The Nevada Supreme Court uses two standards for calculating property damage when determining a criminal defendant’s culpability based on the extent of damage. When property is “completely destroyed,” the appropriate standard is the fair market value of the property at the time it was destroyed. “However, when property is only partially destroyed,” “the appropriate measure of damages is the cost related to repair or restore the property.” Under the latter method, the damage must be directly tied to the offense. Here, the defendant partially destroyed a truck by damaging individual exterior parts. Even though those parts were not permanently affixed to the truck’s frame, they had to be replaced—as they could not be repaired—to restore the truck to its condition before the defendant partially damaged it. Thus, the proper measure of damages was the cost to repair or replace the damaged parts. Judd v. State, 140 Nev. Adv. Op. No. 21, ___ P.3d ___ (March 28, 2024).

Criminal intent: (1) NRS 200.710(1) prohibits the use of a minor in producing pornography; and (2) to obtain a conviction under the statute, the State must prove, beyond a reasonable doubt, that the defendant knew or had reason to know that the victim was a minor—under the age of 18—at the time of the crime. Nevertheless, pursuant to NRS 200.750(2), for purposes of determining the appropriate penalty for the offense, the State is not required to prove that the defendant knew or should have known that the victim was under the age of 14. “[W]here the plain language of NRS 200.750 does not include the element of knowledge, we agree with the State that requiring it to prove the defendant knew or should have known that the victim was under the age of 14 would contravene Nevada’s strong public policy of protecting minors from sex crimes.” Morrison v. State, 140 Nev. Adv. Op. No. 24, ___ P.3d ___ (April 4, 2024).


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 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 (Mar. 2024), the official publication of the Clark County Bar Association. See https://clarkcountybar.org/about/member-benefits/communique-2024/communique-mar-2024/.

The articles and advertisements appearing in Communiqué magazine do not necessarily reflect the opinion of the CCBA, the CCBA Publications Committee, the editorial board, or the other authors. All legal and other issues discussed are not for the purpose of answering specific legal questions. Attorneys and others are strongly advised to independently research all issues.

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