Nevada Appellate Court Summaries (4-7-22)

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

Supreme Court of Nevada

Attorneys: A fee-sharing agreement between attorneys with valid law licenses at the time of the agreement is enforceable even when one attorney is subsequently suspended or disbarred, so long as the suspension or disbarment was unrelated to the cases subject to the agreement and the attorney completed her work on those cases prior to her suspension or disbarment. The ruling in this case permits attorneys to collect contingency fees in matters unrelated to their suspension or disbarment. “An attorney who attempts to game her way into an award of attorney fees in a matter related to her suspension or disbarment will find no solace in this opinion.” Cohen v. Padda C/W 81172, 138 Nev. Adv. Op. No. 18, ___ P.3d ___ (March 31, 2022).

Child support: (1) NRS 125B.030 provides that the physical custodial parent of a child may recover from the parent without physical custody child support for 4 years immediately preceding the filing of a support action; (2) a parent can file for retroactive child support under NRS 125B.030 for the first time after the child has reached the age of majority, and, under NRS 126.081(1), the 3-year statute of limitations to bring a paternity action after the child reaches the age of majority applies to a parent’s request for retroactive child support; and (3) a promise in writing to support a child is enforceable under NRS 126.900(1) when the writing sets forth a clear commitment to provide support in specific terms. Here, the appellant brought the paternity action within 1 year and 3 months after the child turned 18, within the period permitted by NRS 126.081(1). Thus, her request for retroactive child support was timely. As she was permitted to bring a paternity action, she was correspondingly permitted to seek retroactive child support. The Supreme Court of Nevada also found that the respondent did not make a promise in writing to make monthly support payments, and the district court therefore correctly denied the appellant’s claim under NRS 126.900(1). Hargrove v. Ward, 138 Nev. Adv. Op. No. 14, ___ P.3d ___ (March 24, 2022).

Contractors: (1) Pay-if-paid provisions enable a contractor to pay the subcontractor only if the contractor first receives payment from the project developer or owner; (2) in APCO Construction, Inc. v. Zitting Brothers Construction, Inc., 136 Nev. 569, 569, 473 P.3d 1021, 1024 (2020), the Supreme Court of Nevada clarified that pay-if-paid provisions, while not void per se, are unenforceable if they run contrary to the rights and requirements established under NRS 624.624-.630; (3) here, the district court correctly concluded that a subcontract provision conditioning the payment of funds retained from earlier progress payments on the contractor first being paid was unenforceable; and (4) the unenforceability of the pay-if-paid condition did not also invalidate the remaining conditions precedent for obtaining the retention payment. The Supreme Court also agreed that, as the subcontract was assigned after the original contractor terminated its contract with the developer, the subcontractor cannot obtain the unpaid retention from the original contractor. For the same reason, the contractor is not entitled to attorney fees under the subcontract for defending this action. Helix Elec. of Nev., LLC v. APCO Constr., Inc. C/W 80508, 138 Nev. Adv. Op. No. 13, ___ P.3d ___ (March 24, 2022).

Disqualification: (1) In this writ proceeding, petitioner asked the Supreme Court of Nevada to reinstate to a case a district court judge, Judge Gloria Sturman, who was disqualified because her impartiality could reasonably be questioned after she reviewed notes, produced in discovery, that were later determined to be privileged; (2) because the alleged questionable impartiality does not arise from an extrajudicial source, the disqualification standard set forth in Kirksey v. State, 112 Nev. 980, 923 P.2d 1102 (1996), controls in this case; and (3) applying that standard, and reviewing the record here, the Supreme Court of Nevada concluded that there is no evidence that Judge Sturman formed an opinion demonstrating deep-seated favoritism or antagonism against either party; thus, the district court erred by disqualifying Judge Sturman. Maintaining confidence in the judiciary’s independence and impartiality is important, but the Supreme Court could not hold that the Nevada Code of Judicial Conduct (NCJC) requires disqualification for every situation in which a judge is exposed to prejudicial evidence while ruling on evidentiary disputes. To do so would encroach on a judge’s duty to preside over his or her assigned cases. The Supreme Court concluded that “what a judge learns during the course of performing judicial duties generally does not warrant disqualification unless the judge forms an opinion that displays ‘a deep-seated favoritism or antagonism that would make fair judgment impossible.’” Accordingly, because nothing in the record indicates that the question of partiality came from an extrajudicial source, the Supreme Court did not apply NCJC Rule 2.11(A). Instead, because Judge Sturman gained knowledge of the alleged prejudicial facts while acting in her official capacity, Kirksey governs. Applying that standard, Judge Sturman averred she was not biased or prejudiced, and nothing in the record shows that she formed an opinion displaying deep-seated bias that would warrant disqualification under Kirksey. Therefore, the district court abused its discretion by applying the NCJC Rule 2.11(A) standard to disqualify Judge Sturman. Canarelli v. Dist. Ct. (Canarelli), 138 Nev. Adv. Op. No. 12, ___ P.3d ___ (March 24, 2022).

Emergency motions: (1) When filing emergency motions and motions for stay, moving parties must meet certain requirements designed to provide prompt notice, quick access to the information needed to resolve the motion, and proof that they have first sought relief in the district court or that doing so is impracticable; and (2) failure to comply with these requirements may result in summary denial of the motion. Due to their urgent nature, emergency motions use considerable court and party resources. When relief is needed within 14 days to avoid irreparable harm, NRAP 27 requires the movant to take certain steps to ensure both that the parties and the court are notified of the emergency as soon as possible and that the information needed to process the motion is readily available. To those ends, NRAP 27(e)(1) requires the movant, before filing the motion, to “make every practicable effort to notify the clerk of the Supreme Court, opposing counsel, and any opposing parties proceeding without counsel and to serve the motion at the earliest possible time.” The motion must be accompanied by a certificate providing the contact information for the parties, the facts demonstrating both the existence and the nature of the asserted emergency, and when and how the other parties were notified of the emergency and served with the motion. Further, the movant must explain in the motion whether relief was available and sought in the district court and, if not sought, why the motion should not be denied. Finally, when the movant is seeking a stay or injunction, the movant must also comply with NRAP 8(a)(1), which states that “[a] party must ordinarily move first [for such relief] in the district court.” Any movant that seeks a stay from the Supreme Court of Nevada without first applying in the district court must demonstrate that first seeking relief in the district court would be “impracticable.” Here, the NRAP 27(e) certificate fails to meet the stated requirements. TRP Fund VI, LLC v. PHH Mortg. Corp., 138 Nev. Adv. Op. No. 21, ___ P.3d ___ (March 31, 2022).

Gaming: (1) Pursuant to NRS 463.318(2), the district court lacked jurisdiction to entertain Steve Wynn’s petition for a writ of prohibition to arrest the disciplinary proceedings against him; and (2) the district court also lacked jurisdiction to consider the petition for judicial review pursuant to NRS 463.315(1) because an order denying a motion to dismiss for lack of jurisdiction is not a final order. NRS 463.315(1) entitles a person subject to disciplinary proceedings by the Nevada Gaming Commission to judicial review of the Commission’s final order in district court. NRS 463.318(2) states that this judicial review “is the exclusive method of review of the Commission’s actions, decisions and orders in disciplinary hearings.” NRS 463.318(2) also precludes extraordinary common-law writs or equitable proceedings “where statutory judicial review is made exclusive.” In this appeal, the Supreme Court of Nevada considered for the first time whether NRS 463.318(2) precludes a petition for a writ of prohibition challenging the jurisdiction of the Commission and the Nevada Gaming Control Board over a party in disciplinary proceedings before the Commission enters a final decision. The Court also considered whether an order by the Commission denying a motion to dismiss is “final” under NRS 463.315(1). The Court agreed that the district court lacked jurisdiction to review the Commission’s order denying Wynn’s motion to dismiss. Moreover, Wynn is not entitled to writ relief because judicial review under NRS 463.318 is the exclusive method of court intervention regarding the Commission’s disciplinary decisions and that writ relief is explicitly excluded. Finally, judicial review is precluded because only final orders may be reviewed, and the district court properly found that the Commission’s order is not final. Nev. Gaming Comm’n v. Wynn, 138 Nev. Adv. Op. No. 20, ___ P.3d ___ (March 31, 2022).

Medical malpractice: Evidence of a doctor’s prior medical-malpractice suits is generally not relevant to whether the doctor met the standard of care in the current malpractice lawsuit. The fact that a doctor was sued or acted inconsistently with the standard of care in a prior case does not make it more or less probable that he acted below the standard of care in a later case. The Supreme Court of Nevada also held that “[a]n appellant who made an evidentiary objection during trial need not move for a new trial in the district court before filing an appeal to preserve the appellate remedy of reversal and remand for a new trial.” Further, “an appellate court has jurisdiction to review a district court’s oral evidentiary rulings made during the course of trial on appeal from a final judgment.” Rives, M.D. v. Farris C/W 81052, 138 Nev. Adv. Op. No. 17, ___ P.3d ___ (March 31, 2022).

Parole: (1) When probable cause exists to detain a parolee, NRS 213.1517(3) requires the Board of Parole Commissioners to consider the parolee’s case within 60 days of the date the parolee returns to the custody of the Nevada Department of Corrections (NDOC); (2) NRS 213.1517(4) provides an exception to the 60-day rule and allows the Parole Board to defer consideration until the parolee is adjudicated on the new criminal charge and subsequently returned to NDOC; and (3) each of the conditions set forth in NRS 213.1517(4) must be met to defer consideration beyond 60 days from the date the parolee is returned to the custody of NDOC. At issue in this appeal was whether NRS 213.1517(4)’s exception applies where the Parole Board executes a warrant to return the parolee to NDOC beforethe final adjudication on the new criminal charge. The Supreme Court of Nevada concluded that the statutory exception did not apply, and the Parole Board exceeded its authority by deferring the revocation hearing beyond 60 days after the defendant’s return to the custody of NDOC. Thus, the district court correctly applied NRS 231.1517 and ordered the Parole Board to credit the defendant for the time he spent incarcerated pending adjudication on his new criminal charges. In re: Application of Smith (Breck), 138 Nev. Adv. Op. No. 16, ___ P.3d ___ (March 24, 2022).

Postconviction petitions for genetic marker analysis: (1) When determining whether to grant a petition for genetic marker analysis under NRS 176.09183(1)(a), the district court must assume that the analysis will produce exculpatory evidence and then ask whether there is a reasonable possibility that the petitioner would not have been tried or convicted due to that exculpatory evidence; and (2) an evidence custodian’s inventory of evidence is insufficient if it merely describes the packaging in which the evidence is contained as opposed to the evidence within. The plain language of 176.09183(1) requires the district court first to assume that the genetic marker evidence would be exculpatory and then ask whether there is a “reasonable possibility” that the petitioner would not have been convicted or prosecuted in light of the exculpatory genetic marker evidence. Such an interpretation is consistent with the statutory scheme, as the results of the genetic marker testing must be “favorable to the petitioner” for the petitioner to then move for a new trial based on newly discovered evidence. The “reasonable possibility” standard is satisfied if there is “a real possibility that the [exculpatory] evidence would have affected the result.” Separately, the defendant argued that the State’s inventory of the evidence was insufficient because it lacked sufficient detail to identify the evidence remaining in the State’s custody. The Supreme Court of Nevada agreed to the extent that the inventory described the packaging of some of the items of evidence as opposed to the actual evidence contained within it. The purpose of making postconviction genetic testing available to a convicted felon is to evaluate evidence that may contain genetic marker information pertinent to the investigation and prosecution that led to the conviction, and to that end, NRS 176.0918(4)(c)(2) requires the State to provide a detailed list “of all evidence relevant to the claims in the petition … that may be subjected to genetic marker analysis.” Here, the inventory, while sufficiently detailed regarding some pieces of evidence, described the containers of other pieces of evidence as opposed to the evidence itself. The inventory as to those pieces of evidence does not satisfy the statutory directive to produce an inventory of relevant evidence that may be tested because the district court cannot determine what evidence is inside a “small paper canister” or “film canister” for purposes of evaluating its relevancy or whether it should be tested. Accordingly, the district court improperly denied the defendant’s motion for an order to show cause related to the insufficient evidence inventory. Thus, in this case, the Supreme Court of Nevada reversed and remanded for further proceedings. Anselmo (Michael) v. State, 138 Nev. Adv. Op. No. 11, ___ P.3d ___ (March 10, 2022).

Public records: Because the federal Defend Trade Secrets Act (DTSA) classifies certain requested documents, obtained pursuant to S.B. 539 (2017), as confidential trade secrets, the documents are shielded from disclosure under the Nevada Public Records Act (NPRA). Here, the Supreme Court of Nevada considered whether DTSA prohibits disclosure, under the NPRA, of documents from pharmaceutical companies and pharmacy benefit managers (PBMs) collected under S.B. 539 (2017). The Nevada Independent (TNI) petitioned the district court to order the Department of Health and Human Services (DHHS) to release such documents, arguing that the documents constituted public records that must be made available to it. The district court determined that the information in these documents comprised trade secrets protected under the DTSA and that the documents thus were not subject to disclosure under the NPRA. The Supreme Court agreed. “On the facts before us in the record, DHHS has demonstrated that the requested records satisfy the DTSA’s two-step test for confidentiality by showing that manufacturers and PBMs have taken reasonable measures to shield the requested records from disclosure and that these entities derive economic value from the requested records’ secrecy.” The Nevada Indep. v. Whitley, 138 Nev. Adv. Op. No. 15, ___ P.3d ___ (March 24, 2022).

Real property: (1) NRS 106.240 provides a means by which liens on real property are automatically cleared from the public records after a certain period of time; (2) in particular, NRS 106.240 provides that 10 years after the debt secured by the lien has become “wholly due” and has remained unpaid, “it shall be conclusively presumed that the debt has been regularly satisfied and the lien discharged”; (3) during the financial crisis that began in the 2000s, thousands of Nevada homeowners defaulted on their home loans; their lenders recorded notices of default; and those notices accelerated the homeowners’ loan balance, thereby arguably making the loan “wholly due” for purposes of NRS 106.240; (4) now, roughly 10 years after the notices of default were recorded and the loans have remained unpaid, disputes have arisen between property owners and lenders over whether NRS 106.240 extinguishes the deeds of trust securing those loans, such that the lenders no longer have any security interest in the properties; and (5) here, the Supreme Court of Nevada reiterated that “because a notice of rescission rescinds a previously recorded notice of default, the notice of rescission ‘effectively cancelled the acceleration’ triggered by the notice of default, such that NRS 106.240’s 10-year period was reset.” The Court insisted that it “did not overlook or misapprehend any material facts in the record” when reaching the above conclusion. SFR Invs. Pool 1, LLC v. U.S. Bank, N.A., 138 Nev. Adv. Op. No. 22, ___ P.3d ___ (April 7, 2022).

Real property: (1) Here, the Supreme Court of Nevada was asked to consider the extent of a common-interest-community homeowners association’s power to adopt rules restricting the use and design of individually owned properties; and (2) the Court adopted sections 6.7 (use restrictions) and 6.9 (design restrictions) of the Restatement (Third) of Property: Servitudes. Both sections provide that a homeowner’s association does not have the implied power to impose use or design restrictions on individually owned properties and that the association’s governing documents must expressly authorize the imposition of such restrictions to do so. In addition, these sections suggest that any such restrictions should be subject to a “reasonableness” requirement. Moretto v. Elk Point Country Club HOA, Inc., 138 Nev. Adv. Op. No. 24, ___ P.3d ___ (April 7, 2022).

Right to counsel: (1) The Sixth Amendment right to counsel encompasses two different rights–the right to effective assistance of counsel and the right of a non-indigent defendant to be represented by the counsel of his or her choice; (2) a decision denying a motion to substitute appointed counsel with different appointed counsel implicates the right to effective assistance of counsel, while a motion to substitute retained counsel with different counsel implicates a non-indigent defendant’s Sixth Amendment right to counsel of his or her choice; and (3) separate tests apply to determine whether a court should grant a motion to substitute depending on whether counsel is appointed or retained. Here, the relevant inquiry is whether the motion to substitute retained counsel is untimely and the resulting disruption of the orderly processes of justice outweighs the defendant’s right to counsel of choice. In deciding whether a motion to discharge retained counsel is timely, the court must consider the totality of the circumstances. Moreover, although a defendant generally can discharge retained counsel for any reason or no reason at all and therefore does not have to demonstrate inadequate representation or an irreconcilable conflict, the court can still consider the absence or presence of such circumstances, and when defendant became aware of them, in deciding whether the motion to discharge retained counsel is untimely. Brass (Dequincy) v. State, 138 Nev. Adv. Op. No. 23, ___ P.3d ___ (April 7, 2022).

Voluntary dismissal: (1) In this opinion, the Supreme Court of Nevada addressed as a matter of first impression “whether district courts in Nevada have jurisdiction to vacate a plaintiff’s notice of voluntary dismissal in a defamation action in which an anti-SLAPP motion has been filed, denied, appealed, and remanded back to the district court”; and (2) “[w]ithout creating a rule that would determine this issue in all instances,” the Supreme Court determined that “the district court did not err in vacating petitioners’ notice of voluntary dismissal in this instance because the litigation had reached an advanced stage.” Nevada’s anti-SLAPP statutes aim to protect First Amendment rights by providing defendants with a procedural mechanism to dismiss meritless lawsuits that a party initiates primarily to chill a defendant’s exercise of his or her First Amendment free speech rights’ before incurring the costs of litigation. Here, at this point in the proceedings, defendant Steve Sanson has no doubt incurred litigation costs. Given the unique and extreme circumstances of this case, the Supreme Court of Nevada concluded that plaintiff Marshal Willick is estopped from dismissing his action with no consequences, as the litigation has reached an advanced stage after four years and a prior de novo appeal. Therefore, the district court did not manifestly abuse its discretion by, or lack jurisdiction when, vacating Willick’s notice of voluntary dismissal. Willick v. Dist. Ct. (Sanson), 138 Nev. Adv. Op. No. 19, ___ P.3d ___ (March 31, 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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