Nevada Appellate Court Summaries 7-1-20

By Joe Tommasino, Esq.

Supreme Court of Nevada:

Attorney-client privilege: (1) Here, the Supreme Court of Nevada addressed the possible existence of a fiduciary exception to the attorney-client privilege in NRS 49.095, whereby a fiduciary such as a trustee is prohibited from asserting the attorney-client privilege against a beneficiary on matters of trust administration; and (2) because the Nevada Legislature created five exceptions to the attorney-client privilege, none of which are the fiduciary exception, the Court expressly declined to recognize the fiduciary exception in Nevada. Petitioners are former trustees challenging a district-court order compelling the production of allegedly privileged documents in a trust dispute with a beneficiary. The first group of documents at issue contains a former trustee’s notes related to a phone call with counsel, and the second group of documents contains the former trustee’s notes taken during a meeting with other trustees, counsel, the opposing party, and an independent appraiser. Because the former trustee communicated the content of the first group of documents to counsel, these documents are protected by the attorney-client privilege and are undiscoverable. Because the former trustee created the second group of documents in anticipation of litigation and the substantial-need exception to the work-product doctrine is inapplicable, these documents are protected by the work-product doctrine and are undiscoverable. Under NRS 49.095, the physical delivery of notes is not required because the statute clearly protects “communications.” Canarelli v. Eighth Jud. Dist. Ct., 136 Nev. Adv. Op. No. 29, ___ P.3d ___ (May 28, 2020).


Attorney discipline: (1) Effective January 2018, the Supreme Court of Nevada amended SCR 116, the rule governing reinstatement of suspended attorneys to the practice of law; (2) the amended rule applies to any petition filed after the amendment’s effective date, regardless of when the suspension was imposed; and (3) a suspended attorney may apply for reinstatement under the amended rule even if she has not yet satisfied requirements that the Court imposed in the disciplinary order as conditions precedent to applying for reinstatement, but she will have to present “good and sufficient reason” under SCR 116(2) to be reinstated despite that failure. Attorney Lynn Shoen did not seek reinstatement until after SCR 116(2) was amended. While she was disciplined before the amendments to SCR 116, the disciplinary action and the reinstatement action are different proceedings. Because SCR 116 is specific to reinstatement proceedings and Shoen filed her reinstatement petition after the amendments to SCR 116 took effect, the amended rule applies to her reinstatement petition without implicating the general rule against retroactivity. Shoen v. State Bar of Nev., 136 Nev. Adv. Op. No. 30, ___ P.3d ___ (May 28, 2020).


Declaratory relief: (1) Claim preclusion prevents a party from suing based on a claim that was or could have been brought in a prior lawsuit against the same party or its privies; (2) here, appellant Rock Springs Mesquite II Owners’ Association challenged a district-court order granting respondents Stephen and Judith Raridan’s motion to dismiss on the basis of claim preclusion; (3) Rock Springs claimed in a prior lawsuit that its neighbor wrongfully damaged its retaining wall (Case 1); (4) Rock Springs sought in this lawsuit a judicial declaration that it can remove its retaining wall even though doing so may cause the Raridans’ adjacent masonry wall to collapse (Case 2); and (5) the Supreme Court concluded that Rock Springs’ action in Case 2 is not precluded. Because Rock Springs did not raise a declaratory-relief action in Case 1 simply by proposing a jury instruction clarifying lateral-support obligations, Rock Springs’ declaratory relief action in Case 2 was not brought in Case 1. Moreover, because Rock Springs’ action in Case 2 is not based on the same facts or alleged wrongful conduct as its claims in Case 1, Rock Springs’ action in Case 2 could not have been brought in Case 1. Rock Springs Mesquite II v. Raridan, 136 Nev. Adv. Op. No. 28, ___ P.3d ___ (May 28, 2020).


Harmless error: (1) The district court erred in denying a motion to suppress statements made by the appellant because he was in custody at the time and had not been advised of his Miranda rights; (2) that error does not require reversal of the judgment of conviction if it was harmless; (3) although the State bears the burden of proving the error was harmless, the State made no effort to meet that burden in its appellate brief; and (4) because there may be extraordinary cases in which no interest would be served by reversing a judgment of conviction without considering harmlessness, the Supreme Court of Nevada adopted three factors to help determine whether it should consider an error’s harmlessness when the State has not argued harmlessness in a death-penalty case. Those factors are (1) the length and complexity of the record; (2) the certainty that the error is harmless; and (3) the futility and costliness of reversal and further litigation. Here, the Court concluded that sua sponte harmless-error review was appropriate, and the complained-of error was harmless. Belcher v. State, 136 Nev., Adv. Op. No. 31, ___ P.3d ___ (June 4, 2020).


Legislature: (1) Nevada Rule of Professional Conduct 1.7 prohibits a lawyer from representing a client if a concurrent conflict of interest exists with another client, and the rule applies when “[t]he representation of one client will be directly adverse to another client”; (2) in this proceeding, the district court determined that the Legislative Counsel Bureau Legal Division’s (LCB Legal) representation of two defendants in the underlying action, Senate Majority Leader Nicole Cannizzaro and Senate Secretary Claire Clift, is directly adverse to another of its clients—the eight Nevada State Senators who are plaintiffs in that action (the senator plaintiffs); and (3) although the district court concluded that LCB Legal has an ongoing attorney-client relationship with the senator plaintiffs, the circumstances here cut against that conclusion because “LCB Legal’s client is the Legislature, and it represents individual legislators only in their official capacities as constituent members of the Legislature acting on the Legislature’s behalf.” The senator plaintiffs sued Senator Cannizzaro and Secretary Clift in their official capacities for actions taken on behalf of the Legislature related to the passage of two senate bills, and LCB Legal’s defense of Senator Cannizzaro and Secretary Clift as to those legislative acts therefore is ancillary to its defense of the bills themselves. But in challenging the legislation, the senator plaintiffs are not similarly acting on the Legislature’s behalf, and thus they are not considered LCB Legal’s client in this situation. Thus, the senator plaintiffs lack standing to move to disqualify LCB Legal because they do not have an attorney-client relationship with LCB Legal other than in their roles as duly authorized members of the Legislature acting on the Legislature’s behalf. Cannizzaro v. First Jud. Dist. Ct., 136 Nev. Adv. Op. No. 34, ___ P.3d ___ (June 26, 2020).


Punitive damages: (1) Permissive use, established as a matter of law, does not prevent a defendant from defending against a claim for punitive damages; and (2) here, the timing of the district court’s modification of a discovery sanction was prejudicial, as trial had begun. The original district-court judge assigned to this case entered a discovery sanction against respondent establishing as a matter of law that respondent permitted her son to drive the vehicle involved in an accident that injured appellant. When a new judge was assigned to the matter, that judge sua sponte determined that establishing permissive use as a matter of law was unfair because it would prevent respondent from defending against appellant’s punitive-damages claim. The Supreme Court of Nevada concluded that the district court erred in finding that permissive use, established as a matter of law, prevented a defense against the punitive-damages claim. To establish a prima facie case of negligent entrustment, a plaintiff must show two elements: (1) that an entrustment occurred, and (2) that the entrustment was negligent. Because the tort of negligent entrustment does not require proof of a culpable state of mind, a finding of negligent entrustment is not by itself sufficient to justify punitive damages. Garcia v. Awerbach, 136 Nev. Adv. Op. No. 27, ___ P.3d ___ (May 21, 2020).


Sexual assault: Because the 2007 version of Nevada’s sexual-assault statute (NRS 200.366) did not contain an age of consent, the mere fact of a victim’s age did not establish a lack of consent or an inability to resist or understand the nature of the conduct. In 2015, the Legislature modified the statute to allow prosecution without a showing of sexual penetration against the victim’s will or under conditions in which the defendant knew or should have known the victim was incapable of understanding or resisting, but only where the victim was under the age of 14. Prior to that amendment, the State was required to prove lack of consent or an inability to resist or understand the nature of the sexual conduct, regardless of the victim’s age. Honea v. State, 136 Nev. Adv. Op. No. 32, ___ P.3d ___ (June 18, 2020).

Nevada Court of Appeals:


Civil procedure: (1) New amendments to the Nevada Rules of Civil Procedure (NRCP) require a specific analysis when determining the scope of discovery under NRCP 26(b)(1); and (2) the amendments necessitate a framework when determining whether a protective order should be issued for good cause under NRCP 26(c)(1). NRCP 26(b)(1) defines and limits the scope of discovery. Information within the scope of discovery need not be admissible in evidence to be discoverable. NRCP 26(b)(1) outlines factors for district courts to consider regarding proportionality. Those factors include, among others, the amount in controversy and the parties’ relative access to relevant information. Upon considering the factors, a court must limit proposed discovery that is not proportional to the needs of the case. Separately, NRCP 26(c)(1) articulates the standard for protective orders, stating that “[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” The United States Supreme Court has interpreted similar language in FRCP 26(c) as conferring “broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required.” The United States Court of Appeals for the Ninth Circuit uses a three-part test for a good-cause analysis under FRCP 26(c). First, the district court must determine if particularized harm would occur due to public disclosure of the information. Second, if the district court concludes that particularized harm would result, then it must “balance the public and private interests to decide whether . . . a protective order is necessary.” The Ninth Circuit has directed federal district courts to utilize factors from a Third-Circuit Court-of-Appeals case, Glenmede Trust Co. v. Thompson, 56 F.3d 476 (3d Cir. 1995), to help them balance private and public interests. Glenmede enumerates various nonmandatory and nonexhaustive factors for courts to consider when determining if good cause exists, including “[w]hether disclosure will violate any privacy interests” and “[w]hether the information is being sought for a legitimate purpose or an improper purpose.” Third, even if the factors balance in favor of protecting the discovery material, a court must still consider whether redacting portions of the discovery material will nevertheless allow disclosure. District courts should use the above framework and other relevant factors to consider whether parties have shown good cause under NRCP 26(c)(1). If the party seeking the protective order has shown good cause, a district court may issue a required remedial protective order. Venetian Casino Resort, LLC v. Dist. Ct. (Sekera), 136 Nev. Adv. Op. No. 26, ___ P.3d ___ (May 14, 2020).


UCC: (1) Pursuant to NRS 104.9609, secured parties may carry out self-help repossessions on private property provided that they do so without breaching the peace; (2) a breach of the peace occurs when a secured party performs a self-help repossession that is not reasonable in time or manner; and (3) to determine whether a repossession is reasonable in time or manner, courts should consider the principles in this opinion, as they reflect a common understanding as to what conduct is a breach of the peace. Courts routinely conclude that a breach of the peace occurs where actual violence or physical resistance is present during a repossession. Even absent physical violence, when a repossession agent crosses physical barriers or destroys personal property in furtherance of a repossession, a breach of the peace occurs. However, courts also recognize that a mere trespass, standing alone, is not a breach of the peace. Separately, the Court concluded that Nevada’s self-help repossession statute is not an exclusive remedy for debtors to seek recovery of damages for a wrongful repossession. A debtor who is not entitled to statutory damages under the UCC can still plead tort claims to seek recovery based on a breach-of-the-peace theory. Droge v. AAAA Two Star Towing, Inc., 136 Nev. Adv. Op. No. 33, ___ P.3d ___ (June 18, 2020).

Workers’ compensation: NRS 617.366(1) provides that benefits are due when an employee’s current condition results from an original condition that preexisted the job that was aggravated or accelerated by an occupational disease contracted from the job. Nevada statutes contemplate claims arising from four types of “preexisting” conditions:

            (1) An employee who develops an occupational disease for the first time on the job that   becomes further aggravated over the course of the employment, even when the initial onset of       the disease “preexisted” the final condition that gave rise to the claim for compensation;

            (2) An employee who entered a job with a disease that preexisted the employment and was             subsequently aggravated by an industrial accident causing “sudden injury’” that made the original disease worse (scenario governed by NRS Chapters 616A-D);

            (3) An employee who initially entered the employment with a “condition” that preexisted the             employment itself and was subsequently aggravated, precipitated, or accelerated by the onset       of an “occupational disease” that the employee first contracted while working (scenario             governed by NRS 617.366(1)); and

            (4) An employee who contracted an occupational disease and suffered the nonindustrial aggravation of that occupational disease (scenario governed by NRS 617.366(2)).

  1. The claim here falls under NRS 617.366(1), as the individual claims to have entered employment with a condition that partially preexisted the employment and may have worsened over time by itself, but whose course was aggravated or accelerated by an occupational disease. Thus, the claim was “of a kind eligible for compensation under NRS 617.366.” City of Henderson v. Spangler, 136 Nev. Adv. Op. No. 25, ___ P.3d ___ (May 14, 2020).


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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