Nevada Appellate Court Summaries (7-1-23)

Check out the summaries of recent opinions from the Nevada Appellate Courts written by Joe Tommasino, Esq.

Written by Joe Tommasino, Esq.

Supreme Court of Nevada

Foreclosure: (1) In the instant case, the borrowers’ home-equity-line-of-credit (HELOC) agreement is both a negotiable instrument and a promissory note, entitling the loan servicer and trustee to enforce the document under NRS Chapter 104 due to the borrowers’ default; (2) a property held in the name of its residents’ trust is “owner-occupied” for purposes of NRS 107.015(6) and NRS 40.437(12)(c); and (3) the loan servicer and trustee were entitled to both nonjudicial and judicial foreclosure. A HELOC with a closed draw period and specified maturity date is an unconditional promise to pay a fixed amount of money pursuant to NRS 1104.3104(1), rather than a revolving line of credit. As the remaining elements in NRS 104.3104(1)(a)-(c) are met by the agreement at issue, the agreement is a negotiable instrument and can be enforced pursuant to NRS Chapter 104. The Court further stated that “the statute of limitations for debt owed under HELOC agreements with a defined maturity date begins to run–as to unpaid mature installments–upon the installment’s due date, or–as to unmatured future installments–upon the date the lender exercises the optional acceleration clause.” The action here was timely under NRS 104.3118(1). Separately, the Court found that the agreement is a promissory note pursuant to NRS 104.3104(5) and that the home in question is “owner-occupied” pursuant to NRS 107.015(6) and NRS 40.437(12)(c). Wishengrad v. Carrington Mortg. Servs., 139 Nev. Adv. Op. No. 13, ___ P.3d ___ (May 18, 2023). https://nvcourts.gov/supreme/decisions/advance_opinions

Forum non conveniens: (1) The district court abused its discretion by dismissing a complaint for forum non conveniens because the moving parties did not include a supporting affidavit and therefore failed to meet their evidentiary burden; and (2) a sister-state-resident plaintiff is “foreign” for the purposes of forum non conveniens. NRS 13.050 codifies the doctrine of forum non conveniens. It provides that a “court may, on motion or stipulation, change the place of the proceeding . . . [w]hen the convenience of the witnesses and the ends of justice would be promoted by the change.” Courts must weigh specific factors in considering whether to dismiss for forum non conveniens. First, the court must determine the level of deference owed to the plaintiff’s forum choice. Second, the court must determine whether an adequate alternative forum exists. Third, if an adequate alternative forum does exist, the court must then weigh public and private interest factors to determine whether dismissal is warranted. The court should alsoconsider whether failure to apply the doctrine would subject the defendant to harassment, oppression, vexatiousness or inconvenience. Dismissal is appropriate only in “exceptional circumstances” where the factors strongly weigh in favor of another forum. Here, the Court first recognized that a motion for change of venue based on forum non conveniens mustbe supported by affidavits to enable the district court to assess whether exceptional circumstances favor dismissal. Because the moving parties omitted a supporting affidavit, the district court abused its discretion in dismissing the complaint. Next, the Court commented that a plaintiff’s choice of forum generally is entitled to great deference, but a foreign plaintiff’s choice of forum in the United States is “entitled to substantial deference only where the case has bona fide connections to and convenience favors the chosen forum.” To determine whether a sister-state-resident plaintiff should be treated like a Nevada resident or like a foreign plaintiff for purposes of forum non conveniens, the Court turned to the rationale behind this rule. The Court concluded that “the rationale behind affording less deference to a foreign plaintiff’s choice of a Nevada forum applies with equal force to a sister-state-resident plaintiff.” If a foreign plaintiff sues in Nevada, the Court does not presume that choice was made for convenience because the plaintiff does not live in Nevada. This justification holds true for a sister-state-resident plaintiff—there is no reason to presume that she chose Nevada as a forum for convenience because she does not live in Nevada. Accordingly, a sister-state-resident plaintiff should be treated as “foreign” for the purposes of a forum non conveniens analysis and thus be afforded less deference in her choice of forum, unless she proves that Nevada is a convenient forum by showing bona fide connections to Nevada. Pepper v. C.R. England, 139 Nev. Adv. Op. No. 11, ___ P.3d ___ (May 4, 2023). https://nvcourts.gov/supreme/decisions/advance_opinions

Occupational disease: (1) Regarding an occupational heart-disease claim, when an NRS 617.457(11) defense is raised alleging that the employee failed to correct predisposing conditions, the employee bears the initial burden to establish entitlement to the statutory presumption pursuant to NRS 617.457(1) that his heart disease arose out of and in the course of employment; (2) thereafter, if the employer asserts an NRS 617.457(11) defense, the employer bears the burden to demonstrate that the employee had predisposing conditions that lead to heart disease, had the ability to correct those conditions, and failed to do so when ordered in writing by an examining physician; and (3) finally, the employee has an opportunity to rebut the employer’s evidence to establish his entitlement to the presumption. Employees typically must establish, by a preponderance of evidence, that an occupational disease arose out of and in the course of employment in order to receive workers’ compensation benefits for that disease. However, when a police officer who has served for two years or more contracts heart disease that renders him disabled, NRS 617.457(1) provides a conclusive presumption that the disease arose out of and in the course of the officer’s employment, relieving the officer of that initial burden. Once the officer shows that he is disabled as the result of heart disease and that statutory requirements are met, the heart disease is covered, despite any preexisting symptom or condition, unless an exclusion exists. This case involves two appellants (the Las Vegas Metropolitan Police Department and the Department’s workers’ compensation administrator, Cannon Cochran Management Services, Inc.) and respondent Robert Holland who sought workers’-compensation benefits pursuant to NRS 617.457(1). Holland clearly met the requirements for the statute’s conclusive presumption. Even when an employee meets the requirements in NRS 617.457(1), however, an employer may demonstrate that the employee is excluded from use of the conclusive presumption pursuant to NRS 617.457(11). Under this exclusion, “[a]n employer can defend a claim by showing that the employee failed to correct a predisposing condition … after being warned to do so in writing.” Because NRS 617.457(11) plainly precludes an employee who fails to correct a predisposing condition from relying on the conclusive presumption in NRS 617.457(1), it may operate as an affirmative defense to such a claim. It is well-established that a party asserting an affirmative defense has the burden of proving each element of that defense. Thus, because appellants relied on NRS 617.457(11) to defeat Holland’s claim, they bore the burden to prove by a preponderance of the evidence, that (1) Holland had a predisposing condition that leads to heart disease, (2) Holland was “ordered in writing by the examining physician” to correct the predisposing condition, (3) Holland failed to correct the predisposing condition, and (4) the correction was “within the ability of the employee.” Appellants met their burden to establish the first, second, and third elements necessary to maintain their defense under NRS 617.457(11). However, it is not enough to show that Holland failed to correct the predisposing condition leading to heart disease; appellants also had the burden to show the fourth element, that Holland had the ability to correct the condition. This factor is largely tied to the physician’s directives for correcting the condition and whether the corrective action itself is within the employee’s ability. Failure to take corrective actions ordered by the examining physician may indicate that the employee had the ability to correct the condition but did not do so and thereby preclude the employee from the benefits of NRS 617.457(1). However, failure to correct the predisposing condition, despite the employee’s compliance with the corrective action, may indicate instead that the employee did not have the ability to correct the condition. The record below did not include any testimony about whether correcting the predisposing condition was within Holland’s ability. Nor was there any evidence to support the argument that Holland failed to take corrective action. Instead, appellants relied solely on the lack of evidence and Holland’s lack of improvement to his triglyceride levels toshow that he failed to take corrective action, but the burden was theirs, and the inference that he thus had the ability to correct the condition does not follow. Although appellants pointed to evidence showing Holland’s weight increase, rising triglyceride levels, and lack of health improvement over time, this does not necessarily show that Holland did not follow the recommended corrective actions; rather, it could also mean that Holland’s efforts simply failed to correct the precondition, suggesting that the predisposing condition was not actually within his ability to correct. Appellants bore the burden to show that Holland did not take or attempt to take the actions to correct his predisposing conditions. Because appellants failed to make the requisite showing for the fourth element, they were unable to use NRS 617.457(11) to exclude Holland from relying on the statutory presumption that his heart disease arose out of and in the course of his employment. LVMPD v. Holland, 139 Nev. Adv. Op. No. 10, ___ P.3d ___ (April 20, 2023). https://nvcourts.gov/supreme/decisions/advance_opinions

Schools: (1) Under NRS 388G.610, a local school precinct’s authority to select teachers for itself parallels that which the superintendent of a large school district previously enjoyed; and (2) because the school district’s authority was subject to collective bargaining, the local school precinct’s authority is likewise limited, meaning its selection decisions, too, must comply with collectively bargained-for terms. NRS 388G.610(2) provides that the superintendent “shall transfer to each local school precinct the authority to … [s]elect for the local school precinct the: (1) [t]eachers; (2) [a]dministrators other than the principal; and (3) [o]ther staff who work under the direct supervision of the principal.” The local principal makes these staff selections from “a list provided by the [school district] superintendent.” NRS 388G.610(3) provides that CCSD remains responsible for “paying for and carrying out all other responsibilities necessary for the operation of the local school precincts … which have not been transferred to the local school precincts.” One of the responsibilities stated is negotiating, among other things, the “conditions of employment of administrators, teachers and other staff necessary for the operation of the local school precinct.” Elsewhere, NRS 288.150(2)(u) subjects “the policies for the transfer and reassignment of teachers” to mandatory collective bargaining. The Supreme Court of Nevada found that NRS 388G.610(2) is clear and unambiguous. It expressly states that a school’s authority to select its teachers is “transfer[red]” from CCSD’s superintendent. As a verb, “transfer” means “to pass . . . from one to another, [especially] to change over the possession or control of.” CCSD’s own authority to select teachers for a local school is limited by the policies for the transfer and reassignment of teachers negotiated pursuant to NRS 288.150(2)(u). The Legislature expressly left to CCSD the responsibility to negotiate employment terms. Accordingly, the Legislature’s use of “transfer”’ in NRS 388G.610(2) means that a school’s authority to select teachers is likewise limited. In other words, CCSD cannot “pass control of” a greater authority to select teachers than it possesses, such that local schools’ authority to select teachers cannot circumvent the terms of existing collective bargaining agreements. Clark Cty. Ass’n of Sch. Adm’rs v. CCSD, 139 Nev. Adv. Op. No. 12, ___ P.3d ___ (May 11, 2023). https://nvcourts.gov/supreme/decisions/advance_opinions


“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/

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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