Written by Joe Tommasino, Esq.
Supreme Court of Nevada
Arbitration: A party who delays seeking arbitration and avails itself of the discovery process may be deemed to have waived its right to arbitrate, notwithstanding the absence of any dispositive motions in the case, if the totality of the circumstances demonstrate the party actively litigated an issue it subsequently seeks to arbitrate. Respondent Pamela Whalen allegedly sustained injuries when she tripped over a utility box located on property owned and maintained by Appellants Lennar Communities Nevada, LLC, and Greystone Nevada, LLC (collectively Lennar). Prior to the accident, Pamela signed an agreement to purchase a home from Lennar. The agreement included an arbitration clause. After the accident, Pamela sued Lennar. Lennar answered the complaint and demanded a jury trial. After months of extensive discovery, Lennar filed a motion to compel arbitration. The district court denied the motion on the grounds that the dispute is outside the scope of the arbitration clause, without addressing whether Lennar had waived its right to arbitration through its actions. On appeal, the Supreme Court of Nevada concluded that the district court erred by interpreting the scope of the relevant arbitration clause, as the contract clearly and unmistakably delegated this question to the arbitrator. The Court concluded, however, that Lennar waived its right to arbitration. Lennar filed an answer, demanded a jury trial, actively pursued discovery, including three medical examinations of Pamela under NRCP 35, and even stipulated to continue the trial to allow for additional discovery. Thus, Lennar acted inconsistently with its right to arbitrate. Lennar Comm. Nev., LLC v. Whalen (Civil), 142 Nev. Adv. Op. No. 29, ___ P.3d ___ (April 16, 2026).
Arbitration: (1) When parties to a contract agree to submit their disputes to an arbitrator, the presumption in favor of arbitration counsels Nevada courts to give effect to such agreements; (2) this presumption applies to narrow arbitration clauses unless the four corners of such a clause cannot be interpreted to include a dispute at issue; and (3) here, the parties executed a narrow arbitration clause, and the employee’s termination here cannot be interpreted to fall within the clause. A narrow arbitration provision limits arbitration to specific issues or circumstances. Unlike under broad provisions, collateral issues to the subject agreement are not arbitrable under narrow provisions. The Supreme Court of Nevada will identify whether an arbitration clause is narrow by examining the clause for “[n]arrow, precise language,” which “delimits arbitration to an identified subset of disputes.” Here, the arbitration clause in the parties’ collective bargaining agreement (CBA) employs narrow and precise language. The clause limits arbitration to grievances regarding either interpretation and application of an express term of the CBA or disciplinary matters, defined within the CBA as “corrective actions.”The employee here was terminated because of regulations relating to the federal Prison Rape Elimination Act (PREA). Whether or not this termination was justified under PREA, it nonetheless categorically falls outside of the scope of an action “implemented to assist an employee in overcoming a substantiated deficiency related to behavior or work performance.” Therefore, the CBA’s arbitration clause cannot be interpreted to cover the termination. Juvenile Justice Prob. Officers Assoc. v. Clark Cnty. (Civil), 142 Nev. Adv. Op. No. 28, ___ P.3d ___ (April 9, 2026).
First Amendment: The district court manifestly abused its discretion by imposing an unconstitutional prior restraint and violating the media’s right to court access. During the trial of a high-profile criminal defendant, the district court restricted petitioners and other media members from publishing the identity of one of the alleged victims. The district court also threatened to hold petitioners in contempt if they published the alleged victim’s name. The district court issued these restrictions and threats even though the alleged victim’s name had already been repeatedly disclosed in public filings and in open court. Petitioners refused to acquiesce to what they perceived as the district court’s unconstitutional prior restraint. The district court added insult to injury by having court marshals eject and exclude petitioners from the courtroom while the alleged victim testified. Petitioners filed an emergency original petition for a writ. The Supreme Court of Nevada held that the district court manifestly abused its discretion in imposing an unconstitutional prior restraint and violating petitioners’ right to court access. Prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights and invoke “a heavy presumption of unconstitutionality.” A prior restraint or “gag” order is justified onlywhen (1) the activity restrained poses either a clear and present danger or a serious and imminent threat to a protected competing interest, (2) the order is narrowly drawn, and (3) less restrictive alternatives are not available. That showing was not met here. Las Vegas Review-Journal, Inc. v. Dist. Ct. (Chasing Horse) (Civil), 142 Nev. Adv. Op. No. 31, ___ P.3d ___ (April 23, 2026).
Probation: Although NRS 176A.430(6) provides that a criminal defendant’s failure to pay restitution due to economic hardship does not result in a violation of the restitution condition of probation, that protection does not equate to fulfillment of the restitution condition as required to have a criminal conviction set aside or dismissed under NRS 176A.260(6)(a). Following petitioner Julie Engle’s conviction for attempted residential burglary, the district court suspended Engle’s sentence and placed her on probation. As conditions of probation, Engle had to complete a specialty-court program and pay restitution. Engle successfully completed a mental-health-court program and moved the district court to set aside the judgment of conviction under NRS 176A.260(6)(a). After denying the motion because of Engle’s failure to pay restitution, the district court dishonorably discharged her from probation. Engle claimed that the economic-hardship exception in NRS 176A.430(6) excused her from NRS 176A.260(6)(a)’s requirement that a probationer fulfill the terms and conditions of probation before having a conviction set aside. The Supreme Court of Nevada held that “while NRS 176A.430(6) excuses a probation violation for nonpayment of restitution when nonpayment is due to economic hardship, that provision does not relieve a defendant from the affirmative obligation to satisfy the restitution requirement to obtain a set-aside of the conviction under NRS 176A.260(6)(a).” Thus, the district court did not manifestly abuse its discretion when it denied Engle’s motion to set aside the judgment of conviction. Though writ relief was unwarranted as to the set-aside of Engle’s conviction, Engle’s economic hardship excused her failure to satisfy the restitution condition for purposes of an honorable discharge from probation under NRS 176A.850. Accordingly, the Court granted the petition in part to require Engle be granted an honorable discharge. Engle (Julie) v. Dist. Ct. (State) (Criminal), 142 Nev. Adv. Op. No. 30, ___ P.3d ___ (April 16, 2026).
Self-Defense: (1) A defendant cannot present a self-defense theory premised solely on evidence of a victim’s character; and (2) here, without a threshold showing of self-defense, evidence of the victim’s character was inadmissible and lacked relevance. To sufficiently lay a foundation for a defense of self-defense, a defendant must first offer “some evidence, no matter how weak or incredible,” that the defendant acted in self-defense. At that point, the defendant can bring in certain evidence regarding the character of the victim, and the burden of persuasion then rests with the State to disprove self-defense. This case presented the issue of whether a defendant can present the foundation for a self-defense theory premised solely on a victim’s character. The Supreme Court of Nevada held that a defendant cannot. Separately, the Court stated that “[t]he distinction between expert and lay testimony hinges on whether ‘the testimony concern[s] information within the common knowledge of or capable of perception by the average layperson or … require[s] some specialized knowledge or skill beyond the realm of everyday experience.’” Richt (Jesce) v. State (Criminal), 142 Nev. Adv. Op. No. 32, ___ P.3d ___ (April 30, 2026).
Self-Defense: (1) If a defendant knew about a victim’s specific violent acts at the time of an alleged attack, the defendant was entitled to present evidence of those specific violent acts to show the defendant’s state of mind; (2) such evidence may be presented “through the defendant’s own testimony, through cross-examination of a surviving victim, and through extrinsic proof”; and (3) a defendant may present such evidence of a victim’s specific violent acts even when the defendant elects not to testify at trial. A defendant is entitled to a self-defense jury instruction “so long as there is some evidence, no matter how weak or incredible,” to support that theory of the defense. Where the defendant asserts that the alleged crime was committed in self-defense, the defendant may call into question the character of the victim. The victim’s character may be shown by evidence of a victim’s specific bad acts if the defendant personally knew of those prior acts at the time of the incident. Such evidence is probative of the defendant’s state of mind and the reasonableness of their need to defend themself. Here, Appellant Wacey Chabot was convicted of attempted murder and domestic battery with the use of a deadly weapon resulting in substantial bodily harm for shooting his ex-fiancée, Vanessa Aldrich, and of battery with the use of a deadly weapon against his landlord Alejandro Martines. Chabot argued that he acted in self-defense. Although the district court instructed the jury on self-defense, the court prevented Chabot from cross-examining Aldrich about two instances where Aldrich had stabbed Chabot. The district court also excluded evidence of text messages between Chabot, Aldrich, and Martines that Chabot alleged corroborated those prior stabbings. The Supreme Court held that Chabot was entitled to present evidence of Aldrich’s specific bad acts, and the district court therefore erred in preventing him from doing so. Nevertheless, this error was harmless in light of the overwhelming evidence of guilt. Chabot (Wacey) v. State (Criminal), 142 Nev. Adv. Op. No. 27, ___ P.3d ___ (April 9, 2026).
Units of prosecution: The correct unit of prosecution for elder exploitation is one count per victim. When the Legislature enacts a statute criminalizing conduct, it determines the unit of prosecution for that crime. That is, the Legislature decides whether a course of criminal conduct constitutes one offense or many offenses under that statute. Here, Appellant Sophia Smith was convicted of five counts of exploitation of an older or vulnerable person against the same victim. She argued that she should have been charged only with a single count. The Court concluded that although the definition of exploitation is ambiguous and construed in Smith’s favor by the rule of lenity, the error was not plain and does not warrant reversal of Smith’s convictions. However, the Court also held there were other errors at Smith’s trial, such as the district court’s erroneous admission of res gestae evidence and issuance of an incorrect jury instruction. These errors warrant a new trial. The Court noted that, in criminal cases, district courts “shall not direct the jury to find a presumed fact against the accused.” A presumption is mandatory, and thus prohibited, if it instructs the jury that “it must infer the presumed facts if the State proves certain predicate facts.” In contrast, district courts are permitted to issue permissive presumptions, instructions that suggest without compelling “a possible conclusion to be drawn if the State proves predicate facts.” An instruction by a trial judge that under certain circumstances a particular fact “is presumed” is equivalent to a mandatory instruction. Here, Instruction No. 30 was a mandatory presumption prohibited by NRS 47.230(2). Smith (Sophia) v. State, 142 Nev. Adv. Op. No. 26, ___ P.3d ___ (April 9, 2026).
Resources
- “Advance Opinions” are viewable at this link: http://nvcourts.gov/Supreme/Decisions/Advance_Opinions/
- A list of “Forthcoming Opinions” is available at this link every Wednesday: http://nvcourts.gov/Supreme/Decisions/Forthcoming_Opinions/
- “Supreme Court Unpublished Orders” are viewable at this link: http://nvcourts.gov/Supreme/Decisions/Unpublished_Orders/
- “Court of Appeals Unpublished Orders” are viewable at this link: http://nvcourts.gov/Supreme/Decisions/Court_of_Appeals/Unpublished_Orders/
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
© 2026 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 (June-July 2026), the official publication of the Clark County Bar Association.
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