Supreme Court of Nevada
Contractors: The covenant of good faith and fair dealing applies here; the contractor breached the covenant; and the subcontractor did not waive its delay claims under NRS 338.490. The covenant of good faith and fair dealing prohibits arbitrary or unfair acts by one party that work to the disadvantage of the other. A plaintiff can recover damages for breach of the covenant of good faith and fair dealing even if a defendant does not breach the express terms of a contract. The Supreme Court of Nevada found that the plain language of NRS 338.490 limits any waiver or release to the claimed costs that are the subject of the progress or retainage bill. Here, the subject of the release is the retention payment for the work completed prior to the delay costs, and the release is therefore limited to that payment. Apco Constr., Inc. v. Helix Elec. of Nev., LLC, 138 Nev. Adv. Op. No. 31, ___ P.3d ___ (May 5, 2022).
Death penalty: (1) When a jury cannot reach a unanimous decision as to the weighing of aggravating and mitigating circumstances, the jury cannot impose a death sentence but must consider other sentences that may be imposed; and (2) the jury is hung in the penalty phase of a capital trial only when it cannot unanimously agree on the sentence to be imposed. Because of the technical nature of the capital-sentencing process, a standardized verdict form appears in an appendix to this opinion. “Using this verdict form in future capital penalty hearings will aid the jurors and provide a clear record that they followed the necessary steps in determining the appropriate sentence.” Barlow (Keith) v. State (Death Penalty-Direct), 138 Nev. Adv. Op. No. 25, ___ P.3d ___ (April 14, 2022).
Factual innocence: When considering a petition to establish factual innocence under NRS 34.960(2)(b), the district court should be guided by these considerations in deciding whether to order a hearing: (1) A petition may rely on a witness’s recantation of trial testimony as newly discovered evidence, provided the recantation is not the only newly discovered evidence identified in the petition; and (2) a petition may rely on newly discovered evidence that conflicts with a trial witness’s testimony, provided the newly discovered evidence is substantive and exculpatory, not merely impeachment evidence. Notably, “the relevant statute requires the district court to treat the newly discovered evidence as credible, because the decision whether to conduct an evidentiary hearing occurs at the pleading stage, and to consider it with all the other evidence in the case, including evidence presented at trial and any evidence developed after trial.” Bennett (Ashley) v. State, 138 Nev. Adv. Op. No. 29, ___ P.3d ___ (April 28, 2022).
Foreign judgments: (1) Under the Uniform Enforcement of Foreign Judgments Act (UEFJA), a foreign judgment is enforceable in Nevada if the judgment creditor domesticates that judgment according to the provisions of the Act within the rendering state’s limitations period, and additionally complies with the statutory notice provisions of the Act; and (2) here, enforcement of the foreign judgment does not violate due process because respondent served the domestication notice by certified mail, as required by statute, and this type of service is reasonably calculated to reach interested parties. Here, appellant challenged the validity of the Arizona judgment by claiming that the statute of limitations in Arizona expired before he received notice of the filing. However, a state’s statute of limitations does not bear on the validity of the judgment. Instead, the dispositive issue is whether a full-faith-and-credit ground exists to refuse to recognize the judgment. Appellant offered none. Accordingly, the Arizona judgment was entitled to full faith and credit, and UEFJA mandates enforcement of the Arizona judgment in Nevada. Separately, the issue of whether the absence of an actual-notice requirement under UEFJA violates due process was one of first impression. The United States Supreme Court has expressly approved the use of mail to accomplish the notice element of due process. It has also determined that the government may use certified mail to provide notice to those affected by an action. This case involved a judgment creditor who sought to enforce a valid and final judgment. A post-judgment proceeding to enforce a judgment between private parties presents a meaningfully distinct situation from the underlying action that gave rise to the judgment. By the time the judgment creditor seeks to enforce the judgment, the judgment debtor has received notice of and the opportunity to participate in the underlying action. Further, the judgment debtor has either appealed or forgone the right to appeal to the full extent permitted by the rendering state’s law. Therefore, unless obtained by default, a judgment debtor knows of the existence of the judgment and should expect enforcement. Accordingly, “UEFJA’s requirement that a judgment creditor send notice of the filing by certified mail with return receipt requested to the judgment debtor and his attorney at each’s last-known address provides a method reasonably calculated to inform the judgment debtor of a post-judgment enforcement proceeding and to protect the judgment debtor’s due-process rights and property interests.” Flangas v. Perfekt Marketing, LLC, 138 Nev. Adv. Op. No. 26, ___ P.3d ___ (April 14, 2022).
Forfeiture: (1) Public policy does not warrant creating a civil-forfeiture exception to the homestead exemption; and (2) incarcerated individuals may still be deemed residents for purposes of the homestead exemption under NRS 115.020. The purpose of the homestead is to protect families against homelessness and to protect communities from harm caused by homelessness. An individual’s residence does not change because of a temporary absence such as incarceration. Here, the applicable homestead declaration substantially complied with NRS 115.020, so the homestead exemption protects the related property from forfeiture. Aguirre, Jr. v. Elko Cty. Sheriff’s Office, 138 Nev. Adv. Op. No. 32, ___ P.3d ___ (May 5, 2022).
Impeachment by contradiction: (1) In this personal-injury case, the district court admitted surveillance videos of appellant Gavin Cox walking easily and without assistance outside court; (2) the videos contradicted Cox’s in-court presentation, where he used his attorney’s or the marshal’s arm to walk to and from the witness stand and testified that he uses assistance to walk even when not in court; and (3) the district court did not abuse its discretion in admitting the videos as impeachment-by-contradiction evidence. “Impeachment by contradiction occurs when a party offers evidence to prove that a fact to which a witness testified is not true.” Cox did not dispute the videos’ authenticity but nevertheless argued that the district court should not have admitted them. His first argument—that only sworn verbal testimony is impeachable—was flawed. Conduct, equally with words, can constitute evidence. So, “[f]or purposes of contradiction impeachment, a witness may be taken to testify to a fact where the witness engages in assertive conduct on the witness stand.” While it is true that most impeachment-by-contradiction cases “involve attempts to contradict actual testimony given by parties, . . . this form of impeachment can target . . . forms of evidence other than testimony.” Cox testified on direct examination about his injuries generally, and on cross-examination to using assistance walking even when not in court. Additionally, he walked to and from the witness stand on the arm of his attorney or the marshal. Once sworn as a witness, he remained under oath until his testimony concluded the next day, so at least some of the demonstrative conduct occurred while he was under oath. Thus, the district court properly concluded that Cox’s courtroom conduct conveyed to the jury that the injuries he sustained in his fall left him unable to walk unassisted—and that the videos directly contradicted that evidence. Moreover, Cox walking unassisted outside of court is a neutral act. It does not inherently connote good or bad character for truthfulness. Its evidentiary value arose because it contradicted Cox’s in-court assertion that he uses assistance to walk. NRS 50.085(3)’s prohibition against using extrinsic evidence to prove general character for truthfulness or untruthfulness thus does not apply. Finally, Cox’s credibility was a central defensive issue with respect to both the extent of injuries and the circumstances that led to his fall. The videos did not just bear on damages, but also on liability. Evidence suggesting that a party has feigned or exaggerated injuries to garner sympathy suggests consciousness of a weak case, which is relevant and admissible. Allowing Cox to testify to the nature of his injuries and corroborate that testimony with visible courtroom conduct, without allowing respondents to rebut his in-court presentation, would be fundamentally unfair. Cox v. MGM Grand Hotel, LLC, 138 Nev. Adv. Op. No. 27, ___ P.3d ___ (April 14, 2022.
Medical malpractice: (1) NRS 42.021 is Nevada’s codification of the collateral source rule as it pertains to medical-malpractice lawsuits; and (2) the plain language of NRS 42.021(1) and (2) prohibits a payer of collateral source benefits from seeking reimbursement from a medical malpractice plaintiff only when the medical malpractice defendant “introduce[s] evidence” of those payments, which necessarily does not occur when a case is settled pretrial. The intent behind NRS 42.021(1) and (2) is that if a medical malpractice defendant chooses to introduce evidence that a plaintiff received a third-party payment, the jury will reduce the plaintiff’s damages award by that same amount, thereby making it appropriate to prohibit the third-party payer from seeking reimbursement from that award.Accordingly, NRS 42.021(1) and (2) make sense in the context of a trial, but not necessarily in the context of a settlement wherein a plaintiff and a defendant entered into an agreement in which the third-party provider was not involved in the settlement negotiations. Harper v. Copperpoint Mut. Ins. Holding Co., 138 Nev. Adv. Op. No. 33, ___ P.3d ___ (May 5, 2022).
Restitution: (1) Restitution for a victim’s medical costs is limited to the amount that the medical provider accepts as payment in full rather than the amount initially billed by the medical provider; and (2) a defendant’s restitution obligation must be offset by any amount the defendant’s insurer paid to the victim. Measuring restitution in the amount the victim’s medical providers accepted as payment in full for their services to the victim, rather than the higher amount originally billed, is most consistent with, and best promotes, the primary purpose of restitution, as it fully compensates the victim for his or her actual costs. Separately, the Supreme Court of Nevada also noted that the collateral source doctrine does not apply to compensation that a victim receives from a defendant. A district court must offset the defendant’s restitution obligation by the amount the defendant’s insurer paid to the victim for losses subject to the restitution order. The amount to be offset is limited to the portion of the payments intended to compensate the victim for costs recoverable as restitution; thus, any portion directed to pay attorney fees or excludable damages such as pain and suffering should not be credited against the restitution. Nied (Tyler) v. State, 138 Nev. Adv. Op. No. 30, ___ P.3d ___ (May 5, 2022).
Standing: Traditional standing requirements may not apply when an appropriate party seeks to enforce a public official’s compliance with Nevada’s separation-of-powers clause (even if it does not involve an expenditure or appropriation), provided that the issue is likely to recur and guidance is needed. Appellant Nevada Policy Research Institute, Inc. (NPRI) filed a complaint against respondents, alleging that their dual service as members of the state Legislature and as employees of the state or local government violates the Nevada Constitution’s separation-of-powers clause. The district court dismissed the complaint for lack of standing, finding that NPRI did not allege a personal injury for traditional standing and did not satisfy the requirements of the public-importance exception to standing. The Supreme Court of Nevada has previously recognized that a public-importance exception applies when an appropriate party sues to protect public funds by raising a constitutional challenge to a legislative expenditure or appropriation in a case involving an issue of significant public importance. But the constitutional challenge at issue here did not involve an expenditure or appropriation. The Court held that “the public-importance doctrine may apply both where a plaintiff seeks to protect public funds or where, as here, the plaintiff seeks to enforce a public official’s compliance with a public duty pursuant to the separation-of-powers clause, but only where an appropriate party seeks enforcement of that right, the issue is likely to recur, and it requires judicial resolution for future guidance.” Here, refusal to grant standing could result in serious public injury–either by the continued allegedly unlawful service of the named officials, or by the refusal of qualified persons to run for office for fear of acting unconstitutionally–because this unsettled issue continues to arise. Moreover, NPRI is an appropriate party to challenge the constitutionality of respondents’ dual service. Thus, the Court elected to confer standing on NPRI. Nev. Policy Research Inst. v. Cannizzaro, 138 Nev. Adv. Op. No. 28, ___ P.3d ___ (April 21, 2022).
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).
