Nevada Appellate Court Summaries (5-1-24)

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

Alter ego: The alter-ego analysis for a limited-liability company (LLC) is the same as the analysis to determine whether an alter-ego relationship exists for a corporation. NRS 86.376 sets forth the corporate-veil protections and alter-ego exceptions pertaining to LLCs. The question of whether a person acts as the alter ego of an LLC is a matter of law and requires the court to make findings under the following elements: whether (a) the LLC is influenced and governed by the person, (b) there is a unity of interest and ownership such that the person and LLC are inseparable, and (c) adherence to the notion of separate entities would sanction fraud or promote injustice. NRS 86.376 mirrors language and elements of NRS 78.747, simply replacing the term “corporation” with “limited- liability company.” Additionally, “LLCs provide the same sort of possibilities for abuse as corporations, and creditors of LLCs need the same ability to pierce the LLCs’ veil when such abuse exists.” Based on the mirrored statutory language, the similar potentials for abuse, and the need for creditors to pierce the LLCs’ veil to prevent abuse, the Legislature clearly intended the analysis and application of the alter-ego doctrine for LLCs to be the same as that of corporations. Therefore, Nevada caselaw analyzing the alter-ego doctrine for corporations remains instructive when reviewing application of the doctrine to an LLC. Ene v. Graham, 140 Nev. Adv. Op. No. 26, ___ P.3d ___ (April 18, 2024).

Easements: (1) Nevada has long recognized the distinction between adverse possession and prescriptive easements; (2) additionally, exceptional circumstances may warrant comprehensive prescriptive easements; and (3) the determination as to when an exceptional circumstance is present is generally a fact-intensive question. Nevada law does not concretely declare whether it recognizes comprehensive prescriptive easements, easements that result in the complete exclusion of the servient estate from the subject property. However, the Supreme Court was persuaded that exceptional circumstances may warrant comprehensive prescriptive easements. Such relief is rare, and exceptional circumstances are not present in this case. Jones v. Ghadiri, 140 Nev. Adv. Op. No. 27, ___ P.3d ___ (April 18, 2024).

“Ghost guns”: (1) The district court erred in declaring that the definition of “unfinished frame or receiver” in NRS 202.253(9) is unconstitutionally vague and in enjoining the enforcement of NRS 202.3625 and NRS 202.363; (2) the definition employs terms ascertainable by their ordinary meanings and that align with trade and industry usage; and (3) the statutes are general-intent statutes and sufficiently definite that they do not risk arbitrary or discriminatory enforcement. This appeal involves a facial challenge to the constitutionality of statutes regulating “ghost guns.” Except for transactions between firearms importers and manufacturers and where imprinted with a serial number, NRS 202.3625 generally criminalizes the sale or transfer of an unfinished firearm frame or receiver, and NRS 202.363(1) generally criminalizes the possession, purchase, transport, or receipt of an unfinished frame or receiver. The Supreme Court concluded that, “[i]n prosecuting an offense pursuant to NRS 202.3625 or NRS 202.363, the State must show that the defendant willfully sold, offered to sell, transferred, possessed, purchased, transported, or received an unfinished frame or receiver and that the defendant knew that the object at issue had the objective characteristics of being intended to be turned into a firearm.” This knowledge element requires a factual determination in the district court, and the statutes are not unconstitutionally vague on this basis. Sisolak v. Polymer80, Inc., 140 Nev. Adv. Op. No. 30, ___ P.3d ___ (April 18, 2024).

Guardianship: (1) NRS 159A.053 allows the district court to appoint temporary guardians over minor children upon a showing of good cause; and (2) here, the district court manifestly abused its discretion in failing to give the request for temporary guardianship proper consideration under NRS Chapter 159A. Petitioners have been out of the care, custody, and control of their parents since March 2023, so good cause for the temporary guardianship is presumed. The presumption applies any time temporary guardianship is sought; the fact that it may not be rebutted until a hearing, at most ten days after an ex parte appointment, does not render it inapplicable at the ex parte stage. B.Y. v. Eighth Jud. Dist. Ct., 140 Nev. Adv. Op. No. 32, ___ P.3d ___ (April 25, 2024).

Initiative petitions: The proposed initiative petition here is valid for these reasons: (1) the initiative petition has a single subject which is the establishment of a fundamental right to reproductive freedom; (2) all the provisions of the initiative petition are germane or functionally related to that subject; (3) the description of effect is legally sufficient, as it is a straightforward, succinct, and nonargumentative summary of the initiative’s goals and how it intends to achieve those goals; and (4) the respondents did not meet their burden of demonstrating that the initiative petition requires an expenditure of money. Regarding the description of effect, NRS 295.009(1)(b) requires each initiative petition to “[s]et forth, in not more than 200 words, a description of the effect of the initiative … if the initiative … is approved by the voters.” Because the description of effect is statutorily required to be no more than 200 words, it “cannot constitutionally be required to delineate every effect that an initiative will have; to conclude otherwise could obstruct, rather than facilitate, the people’s right to the initiative process.” Separately,

Article 19, Section 6 of the Nevada Constitution precludes “the proposal of any statute or statutory amendment which makes an appropriation or otherwise requires the expenditure of money, unless such statute or amendment also imposes a sufficient tax, not prohibited by the Constitution, or otherwise constitutionally provides for raising the necessary revenue.” Thus, “an initiative that makes an appropriation or requires an expenditure of money is void if it does not also provide for the necessary revenue.” Here, it is not a foregone conclusion that the initiative requires an expenditure of money; the idea that the initiative requires such an expenditure is speculative, at best. Nevadans for Reprod. Freedom v. Washington, 140 Nev. Adv. Op. No. 28, ___ P.3d ___ (April 18, 2024).

Juveniles: A juvenile who faces possible prosecution as an adult on serious criminal charges as a result of a certification proceeding must meet the adult-criminal-court standard for competence. Rather than categorically hold that juvenile norms or an adult level of competence applies to a competency determination made by a juvenile court, the Supreme Court of Nevada concluded that application of the relevant standard is context-specific. The facts and circumstances of a case affect the level of ability that a child must have to be deemed competent. On one hand, if a case in juvenile court “raises no complex legal or evidentiary issues and if the possible dispositions and consequences of adjudication are not similar to those of a criminal conviction,” then “a juvenile with more limited decisionmaking capacity than would be required in a criminal proceeding” could be competent to proceed in juvenile court. So, in some cases, what other courts refer to as evaluating competency according to juvenile norms may be appropriate. On the other hand, where the punishment stakes are equal to those facing adult criminal defendants and the objective is punitive, a finding that the juvenile is competent at the level of an adult criminal defendant is required. To be competent, a child facing a certification proceeding must understand the right to a jury trial in adult criminal court and be able to make trial-related decisions, such as whether to accept a plea deal. If the consequences of a child accepting a plea deal involve “presumed placement in a correctional facility,” then the child “must demonstrate the same level of decisionmaking capacity as an adult making a similar decision in a criminal proceeding.” This is because the child must understand the long-term consequences of accepting the plea deal to be able to rationally choose between the available options. Here, “[g]iven the seriousness of the charges in the delinquency petition and the possibility of life-altering consequences should D.C. be certified to adult criminal court, D.C. was only competent to proceed to the certification hearing if he met the NRS 62D.140 prongs at the level of a competent adult defendant.” In re D.C., Jr., 140 Nev. Adv. Op. No. 25, ___ P.3d ___ (April 18, 2024).

Takings: (1) When a governmental agency acts in a manner that removes all economic value from privately owned land, just compensation must be paid; (2) here, the City’s actions demonstrated a refusal to allow any development on the 35-acre parcel at issue such that the parcel no longer had any economic value; and (3) the district court therefore did not err in finding that a taking occurred, nor did the district court err in its just-compensation award, as it based that decision on uncontroverted evidence from a duly admitted expert witness. Nevada’s constitutional takings jurisprudence has long recognized that regulatory-agency decisions that deprive a landowner of all economically beneficial use of their property–a per se regulatory taking–require just compensation to the landowner under both the Fifth Amendment of the United States Constitution and Article 1, § 8(3) of the Nevada Constitution. Here, the City of Las Vegas challenged the district court’s determination that a per se regulatory taking occurred and its $48 million award to the landowner, 180 Land Co., LLC. The Supreme Court of Nevada concluded that “[t]he totality of the circumstances surrounding the City’s handling of 180 Land’s attempts to develop the 35 acres at issue, demonstrated through 180 Land’s applications to develop the property, the official actions of the city council, and statements and actions of City representatives and employees, evinces the futility of 180 Land’s past and future development efforts on the property.” With any efforts to develop the property rendered futile, the district court did not err in determining that a per se regulatory taking occurred. City of Las Vegas v. 180 Land Co., LLC, 140 Nev. Adv. Op. No. 29, ___ P.3d ___ (April 18, 2024).

Nevada Court of Appeals

Professional negligence: (1) This opinion addresses whether irrefutable evidence existed to support the district court’s determination of the accrual date in a professional-negligence action, thereby warranting dismissal of the case pursuant to the applicable one-year statute of limitation; and (2) because factual disputes remain regarding the relevant accrual date, the district court erred in dismissing the complaint as untimely as a matter of law under NRCP 12(b)(5). The Court of Appeals applied the reasoning of Massey v. Litton, 99 Nev. 723, 728, 669 P.2d 248, 252 (1983), a summary-judgment case, in the context of a motion to dismiss, to conclude that a patient is “fully entitled to rely on the physician’s professional skill and judgment” while under the physician’s care, which, in this case, precluded the district court from finding—as a matter of law—that irrefutable evidence existed to support its determined accrual date. The Massey case is instructive because “[i]ts legal holdings concerning a patient’s ability to rely on a treating physician’s advice during the time of treatment and the diminished diligence required of a patient to discover their legal injury during this time apply equally when considering whether to grant a dismissal or summary judgment.” Here, if genuine disputes regarding inquiry notice remain following discovery, then the determination of the accrual date is a question of fact for the jury or trier of fact to resolve. Boman v. Elkanich, 140 Nev. Adv. Op. No. 31, ___ P.3d ___ (April 25, 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.

Discover more from Clark County Bar Association

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

Continue reading