Nevada Appellate Court Summaries 5-2-20

By Joe Tommasino, Esq.

Supreme Court of Nevada:

Arson:  Nevada’s arson statutes (codified in NRS Chapter 205) plainly require the State to prove that the defendant “willfully and maliciously” caused a fire, which means the State must prove that the defendant engaged in volitional conduct coupled with a specific intent to harm.  The Legislature’s definition expressly requiring an evil intent to harm or injure indicates that liability for arson requires more than merely a general intent to start a fire.  To the extent that arson proscribes a willful (volitional) act of setting fire to or burning property, coupled with a malicious state of mind, or an “evil intent” to harm or injure, arson may be described as a specific-intent crime.   State v. Second Jud. Dist. Ct. (Radonski), 136 Nev. Adv. Op. No. 23, ___ P.3d ___ (April 30, 2020).  https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Attorney’s fees: (1) NRS 18.010(2) and NRS 18.020 allow a “prevailing party” to recover attorney fees and costs in certain circumstances; (2) a voluntary dismissal with prejudice generally conveys prevailing-party status upon the defendant; and (3) courts should consider the circumstances surrounding the voluntary dismissal with prejudice in determining whether the dismissal actually conveys prevailing-party status.  A voluntary dismissal with prejudice generally equates to a judgment on the merits sufficient to confer prevailing-party status upon the defendant. This rule is not absolute, as there may be circumstances in which a party agrees to dismiss its case but the other party should not be considered a prevailing party. For instance, a party may have a strong case or defense but nonetheless stipulates to a dismissal with prejudice because it lacks funds to pursue litigation. Thus, a court should consider the reason for the voluntary dismissal with prejudice when determining whether a dismissal with prejudice equates to a judgment for purposes of awarding attorney fees and costs. 145 E. Harmon II Tr. v. Res. at MGM Grand, 136 Nev. Adv. Op. No. 14, ___ P.3d ___ (April 2, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Bail:  (1) When bail is set in an amount the defendant cannot afford, it deprives the defendant of liberty, despite the fact that the defendant has not been convicted and is presumed innocent; and (2) to safeguard against pretrial detainees sitting in jail simply because they cannot afford to post bail, specific due-process protections are constitutionally required.  A defendant who remains in custody following arrest is entitled to a prompt individualized determination regarding pretrial custody status. The individualized determination must be preceded by an adversarial hearing at which the defendant is entitled to present evidence and argument concerning all the relevant bail factors. The judge must consider factors set forth in NRS 178.4853 and may impose bail only if the State proves by clear and convincing evidence that it is necessary to ensure the defendant’s presence at future court proceedings or to protect the safety of the community, including the victim and the victim’s family. If the district court determines that bail, rather than nonmonetary conditions, is necessary, the judge must consider the defendant’s financial resources as well as other factors in NRS 178.498 in setting the amount of bail, and the judge must state the reasons for the bail amount on the record. Lastly, NRS 178.4851(1) requires a showing of “good cause” before a person may be released without bail. The “good-cause” requirement to release a person on nonmonetary conditions undermines the constitutional right to nonexcessive bail. Thus, the “good-cause” requirement in NRS 178.4851(1) is unconstitutional and must be severed from the statute. Valdez-Jimenez (Jose) v. Dist. Ct (State) C/W 76845, 136 Nev. Adv. Op. No. 20___ P.3d ___ (April 9, 2020).  https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Divorce:  (1) NRS 111.781 governs the effects of divorce on nonprobate transfers of property; and (2) NRS 111.781(1) automatically revokes any revocable disposition from one spouse to another upon divorce. NRS 111.781 provides that unless “otherwise provided by the express terms of a governing instrument,” any revocable dispositions of property to a former spouse, including those made pursuant to a trust, are automatically revoked upon divorce. Here, because no other governing instrument demonstrated the decedent’s intent to the contrary, the district court correctly applied NRS 111.781 and concluded that it required revocation of the interest in the property relating to the decedent’s ex-husband. In re Colman Family Revocable Living Tr., 136 Nev. Adv. Op. No. 13, ___ P.3d ___ (April 2, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Intervention:  Intervention after final judgment is impermissible under NRS 12.130. NRS 12.130 provides that “[b]efore the trial, any person may intervene in an action or proceeding, who has an interest in the matter in litigation, in the success of either of the parties, or an interest against both.” (Emphases added.) In Ryan v. Landis, in interpreting a nearly identical predecessor to NRS 12.130, the Supreme Court of Nevada adopted the principle that there could be no intervention after judgment, including default judgments and judgments rendered by agreement of the parties. 58 Nev. 253, 259, 75 P.2d 734, 735 (1938). The Court reaffirmed that principle in Lopez v. Merit Insurance Co., 109 Nev. 553, 556-57, 853 P.2d 1266, 1268 (1993). In reversing a lower court’s decision allowing an insurance company to intervene after judgment, the Court reasoned, “[t]he plain language of NRS 12.130 does not permit intervention subsequent to entry of a final judgment.” Id. at 556, 853 P.2d at 1268. In the instant case, the Court stated that “[w]e do not intend today to disturb that well-settled principle that intervention may not follow a final judgment, nor do we intend to undermine the finality and the preclusive effect of final judgments.” Although the district court erred in granting intervention in an initial action where a default judgment had been entered, the district court properly granted intervention in a later action where a final judgment had not yet been entered.  Separately, the Supreme Court of Nevada concluded that because an action that reached final judgment has no pending issues, the district court improperly consolidated the two cases.  Allowing a case that has reached final judgment to be consolidated with a newer case undermines the goal of judicial efficiency by permitting relitigation of resolved issues and requiring parties to spend unnecessary additional court costs.  Finally, the Court concluded that the district court properly vacated a judgment erroneously entered by the district-court clerk when a stay was in effect.   Nalder v. Dist. Ct. (United Auto. Ins. Co.) C/W 78243, 136 Nev. Adv. Op. No. 24, ___ P.3d ___ (April 30, 2020).  https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Judgments:  (1) Although Nevada’s judgment-execution statutes permit a judgment creditor (respondents) to execute on a debtor’s (appellants) personal property, including the right to recover a debt, money, or thing in action, those statutes limit the title the sheriff can convey at an execution sale to only that title which the debtor could convey himself; (2) Nevada law, in turn, restricts the right to convey certain claims by making them unassignable; and (3) a judgment debtor’s claims that are unassignable similarly cannot be purchased at an execution sale.  NRS 21.320 allows a court to order a judgment debtor’s nonexempt property “be applied toward the satisfaction of the judgment” against him. NRS 21.080(1) provides that property liable to such execution includes all of the judgment debtor’s personal property.  Under NRS 10.045, the definition of “[p]ersonal property” includes “things in action” which entail the “right to bring an action to recover a debt, money, or thing.”  Rights of action held by a judgment debtor are personal property subject to execution in satisfaction of a judgment.  Here, respondents contended that, by purchasing appellants’ “things in action” at the sheriff’s sale, they were entitled to substitute themselves for appellants in this appeal as the now-owners of the claims being appealed.  That would only be true, however, if “things in action” encompasses all of appellants’ underlying claims, but “things in action” only includes those claims that the judgment debtor has the power to assign.  For instance, tort claims for personal injury are generally not assignable, but tort claims for injury to property are generally assignable.  When a tort claim alleges purely pecuniary loss, as is true with appellants’ negligent-misrepresentation claim, the claim may be assigned.  And, because the claim may be assigned, it is subject to execution to satisfy a judgment.  Finally, contract-based claims are generally assignable and are thus subject to execution in satisfaction of a judgment, unless personal in nature.  Here, because appellants’ claims for fraud and elder exploitation are personal in nature, they are not assignable and were not subject to execution at the sheriff’s sale. Therefore, respondents did not acquire those claims at the execution sale.  Reynolds v. Tufenkjian, 136 Nev. Adv. Op. No. 19, ___ P.3d ___ (April 9, 2020).  https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Medical malpractice:  (1) Nevada’s res ipsa loquitur statute, NRS 41A.100, creates a rebuttable presumption of negligence in certain medical-malpractice actions; (2) here, the Supreme Court of Nevada considered whether a plaintiff relying on NRS 41A.100’s presumption for a prima facie case of negligence must provide expert testimony to survive a defendant’s summary-judgment motion; and (3) such a plaintiff does not, for “all a plaintiff must do to proceed to trial is establish the facts that entitle her to NRS 41A.100’s rebuttable presumption of negligence,” and whether a defendant successfully rebuts the presumption with expert testimony or other direct evidence becomes a question of fact for the jury.  NRS 41A.100(1) provides the general rule that a plaintiff must present expert testimony or other medical materials to establish negligence in a medical-malpractice case. This provision carves out five circumstances where a plaintiff is exempt from that requirement and is instead entitled to a rebuttable presumption of negligence. The plaintiff filed her malpractice action under NRS 41A.100(1)(a), which provides one exception when “[a] foreign substance other than medication or a prosthetic device was unintentionally left within the body of a patient following surgery.”  The district court erroneously concluded that once the defendant doctor provided expert testimony to rebut the presumption of negligence, the plaintiff was required to submit expert testimony of her own to survive summary judgment.  However, “NRS 41A.100(1), which relieves a plaintiff of the requirement to present expert testimony at trial, similarly relieves a plaintiff of this requirement at summary judgment.”  Thus, all a plaintiff needs to do to survive summary judgment is to present evidence that facts giving rise to NRS 41A.100(1)’s presumption of negligence exist—i.e., that at least one of the factual circumstances in NRS 41A.100(1)(a)-(e) exists.  Jaramillo v. Ramos, 136 Nev. Adv. Op. No. 17, ___ P.3d ___ (April 2, 2020).  https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Medical malpractice:  (1) Nevada’s res ipsa loquitur statute carves out circumstances where a plaintiff need not present expert testimony to establish negligence in a medical- malpractice case; (2) NRS 41A.100(1)(a) carves out an exception where a foreign substance is unintentionally left inside a patient’s body following surgery; (3) here, the Supreme Court of Nevada considered whether NRS 41A.100(1)(a) applies where a surgeon fails to remove a foreign object that was implanted and left inside a patient’s body during a previous surgery; and (4) the Court held that “although NRS 41A.100(1) generally applies only to objects left in the patient’s body during the at-issue surgery, it can also apply in cases where, as here, the sole purpose of the at-issue surgery is to remove medical devices and related hardware implanted during a previous surgery.”  NRS 41A.100(1)’s application is not limited to foreign objects implanted or used only during the at-issue surgery.  Nor does it extend to foreign objects implanted or used during any surgery.  Rather, the Court interprets NRS 41A.100(1)(a) to apply to foreign objects implanted or used during the at-issue surgery and foreign objects implanted or used during a previous surgery where the purpose of the at-issue surgery is removal of the foreign devices and related hardware implanted or used during the previous surgery.  Cummings v. Barber, 136 Nev. Adv. Op. No. 18, ___ P.3d ___ (April 2, 2020).



Public records:  (1) If a governmental entity denies a public-records request, the requester may seek a court order compelling production; (2) if the requesting party prevails, the requester is entitled to attorney fees and costs; (3) here, the Supreme Court of Nevada considered whether the requesting party prevails for purposes of an award of attorney fees and costs when the parties reach an agreement that affords the requesting party access to the requested records before the court enters a judgment on the merits; and (4) the Court adopted the “catalyst theory” which provides that attorney fees may be awarded, even when litigation does not result in a judicial resolution, if the defendant changes behavior substantially because of, and in the manner sought by, the litigation.  For many reasons, a governmental agency might voluntarily release information after the filing of a public-records lawsuit, including reasons having nothing to do with litigation. Thus, a requester is entitled to attorney fees and costs under NRS 239.011(2), absent a district-court order compelling production, when the requester can demonstrate “a causal nexus between the litigation and the voluntary disclosure or change in position by the Government.”  To alleviate concerns that the catalyst theory will encourage requesters to litigate their requests in court unnecessarily, a court should consider specific factors, including “when the documents were released” and “what actually triggered the documents’ release.”  LVMPD v. Ctr. for Investigative Reporting, 136 Nev. Adv. Op. No. 15, ___ P.3d ___ (April 2, 2020).  https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/


Real property:  (1) NRS 104.3309 provides a procedure to enforce a lost, destroyed, or stolen note; (2) the enforcing party must show by a preponderance of the evidence that it either had the right to enforce the note when it lost possession or acquired ownership of the note from a party that had the right to enforce it, that the note was not lost as a result of a transfer or lawful seizure, and that the note cannot be reasonably obtained; (3) this showing may be made by a lost-note affidavit and other secondary evidence as necessary to demonstrate, under the circumstances specific to that particular instrument, that the enforcing party is entitled to enforce the lost instrument; and (4) because the statutory analysis is intrinsically fact-based, it should take into account all relevant considerations to determine whether an action may proceed in the absence of the original note.  Here, respondent U.S. Bank acquired the deed of trust secured by Appellant’s residence and sought to foreclose on the defaulted loan. The original lender, however, did not execute an assignment of the note to U.S. Bank when the lender assigned the deed of trust to U.S. Bank, and the loan servicer swore an affidavit certifying that the note was lost.  Because U.S. Bank presented evidence to meet its burden to show that the original note was lost, that it was entitled to enforce the note because it had been assigned the deed of trust and there was no evidence of an intent to transfer the deed of trust without the note, that Appellant had defaulted, and that it was entitled to foreclose on the deed of trust, the district court correctly granted summary judgment to U.S. Bank.  Jones v. U.S. Bank Nat’l Ass’n, 136 Nev. Adv. Op. No. 16, ___ P.3d ___ (April 2, 2020).  https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/


Trusts:  (1) Here, specific language in a trust instrument allows a trustee to pay “as much of the principal of the Trust as the Trustee, in the Trustee’s discretion, shall deem necessary for the proper support, care, and maintenance” of the beneficiary; (2) neither the trust instrument nor Nevada law requires the trustee to consider the beneficiary’s other assets before making distributions from the trust; and (3) discovery relating to those other assets is irrelevant to the claim that the trustee breached her fiduciary duties.  NRS 163.4175 states, “[e]xcept as otherwise provided in the trust instrument, the trustee is not required to consider a beneficiary’s assets or resources in determining whether to make a distribution of trust assets.”  Thus, Nevada law does not obligate a trustee to consider other assets or resources before making a distribution unless the trust instrument itself sets forth such a requirement.  The Court refused to infer an exception to NRS 163.4175 based solely on the terms “necessary” and “proper” in the trust instrument, as those terms appear frequently in trusts, but their meanings depend on the circumstances and text of the instruments.  William J. Raggio Family Trust v. Dist. Ct. (Righetti), 136 Nev. Adv. Op. No. 21, ___ P.3d ___ (April 9, 2020).  https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Voluntary Manslaughter:  A district court must instruct the jury on voluntary manslaughter when requested by the defense so long as it is supported by some evidence, even if that evidence is circumstantial.   Here, some evidence in this case suggests the shooting occurred in the heat of passion, including the physical evidence, the circumstances surrounding the shooting, the evidence regarding the couple’s relationship and the victim’s drug use, and the evidence regarding the defendant’s demeanor and emotional state. Therefore, the district court abused its discretion by declining to instruct the jury on voluntary manslaughter, as the circumstantial evidence suggested the killing occurred in a sudden heat of passion upon provocation.  The Nevada Supreme Court emphasized that “district courts must instruct juries on the defendant’s theory of the case where there is any evidence, no matter how weak, to support it.”  Separately, the Court found that “a rational juror could find [the defendant] guilty beyond a reasonable doubt of two counts of child abuse, neglect or endangerment in violation of NRS 200.508(1).”  Newson v. State, 136 Nev. Adv. Op. No. 22, ___ P.3d ___ (April 30, 2020).  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).

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