Nevada Appellate Court Summaries (7-7-22)

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

Arbitration: (1) Here, the Master Subcontract Agreement (MSA) provision incorporates the prime contract provision, which is broad, so the presumption of arbitrability applies; and (2) because that presumption was not rebutted, the underlying dispute is arbitrable. Even construing the MSA provision narrowly, this dispute is arbitrable because it fits within the face of the arbitration provision: the parties must arbitrate whether costs included in a change order are reasonable and reimbursable under the prime contract’s arbitration agreement. SR Constr., Inc. v. Peek Bros. Constr., Inc., 138 Nev. Adv. Op. No. 41, ___ P.3d ___ (June 2, 2022).

Attorney misconduct: Consistent with Rives v. Farris, 138 Nev. Adv. Op. No. 17, 506 P.3d 1064 (2022), an appellant need not move for a new trial to raise claims of improper attorney arguments on appeal if the appellant preserved the issue with an objection. Respondents argued that Lioce v. Cohen, 124 Nev. 1, 174 P.3d 970 (2008), requires a party to move for a new trial to preserve a specific claim that attorney misconduct warrants a new trial. Although Lioce arose from orders resolving motions for new trials, that distinct procedural posture does not encumber review in the context of an appeal from a final judgment where appellants objected to at least some of the alleged misconduct. Thus, the Rives rule applies here. Turning to the merits, Appellants contended that Respondents made an improper ability-to-pay argument in closing that constituted reversible attorney misconduct because it focused on how many years it would take a family to save enough money to cover the requested damages. Appellants also argued that Respondents’ attorney’s comments improperly encouraged jury nullification and that the attorney made an improper golden-rule argument. However, the alleged improper ability-to-pay argument and golden-rule argument did not warrant reversal, either because they fell within a permissible range of argument or because appellants did not timely object and were unable to show plain error. Evans-Waiau v. Tate, 138 Nev. Adv. Op. No. 42, ___ P.3d ___ (June 16, 2022).

Child custody: NRS 125A.465’s language is plain and unambiguous, and its 20-day deadline must be applied to preclude untimely challenges to the registration of a foreign custody order, such as the challenges to the Tribal Court custody order at issue here. This appeal raised an issue of first impression regarding the registration of foreign child-custody orders under NRS 125A.465, part of Nevada’s adoption of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). In particular, the Supreme Court of Nevada had to interpret the portion of the statute that precludes a party from challenging the registration if the party fails to do so within 20 days of receiving notice of the request to register and those challenges that “could have been asserted at the time of registration.” In light of the statute’s plain language, the decisions of other jurisdictions, and the commentary to the UCCJEA and another similar act, the Court concluded that the statute is unambiguous and its plain language should be applied. Blount v. Blount (Child Custody), 138 Nev. Adv. Op. No.52, ___ P.3d ___ (July 7, 2022).

Civil procedure: (1) NRAP 3A(b)(8) provides the Supreme Court of Nevada with appellate jurisdiction over orders granting NRCP 60(b)(1) relief when the motion is filed more than 60 days after the judgment; (2) NRCP 60(b)(6)’s “any other reason justifying relief” provision is mutually exclusive with the provisions outlined in NRCP 60(b)(1)-(5); and (3) NRCP 60(b)(6) may not be used as a subterfuge to circumvent the time limits that apply to a request for relief based on NRCP 60(b)(1). NRCP 60(b) provides grounds for relief from a final judgment, including mistake or excusable neglect (NRCP 60(b)(1)), newly discovered evidence (NRCP 60(b)(2)), fraud (NRCP 60(b)(3)), or “any other reason that justifies relief” (NRCP 60(b)(6)). Any such relief must be sought within a “reasonable time” and, when the relief is sought under NRCP 60(b)(1), (2), or (3), within 6 months after service of written notice of the judgment’s entry. Furthermore, NRAP 3A(b)(8) provides for appeals from “[a] special order entered after final judgment, excluding an order granting a motion to set aside a default judgment under NRCP 60(b)(1) when the motion was filed and served within 60 days after entry of the default judgment.” This appeal was taken from a district-court order that granted a motion for relief from a default judgment under NRCP 60(b)(1) and (6), although the motion was filed over 14 months after service of written notice of entry of the default judgment. The Supreme Court first clarified that, “per NRAP 3A(b)(8), this court has appellate jurisdiction over orders granting NRCP 60(b)(1) relief when the motion is filed more than 60 days after entry of judgment.” Second, the Court clarified that “the ‘any other reason that justifies relief’ provision under NRCP 60(b)(6) is mutually exclusive of the relief provided in NRCP 60(b)(1)-(5) and may not be used to circumvent the 6-month time constraints imposed under that rule.” Because the requested relief was based on allegations constituting only mistake or excusable neglect, which fall under NRCP 60(b)(1), relief under NRCP 60(b)(6) was unavailable. Vargas v. J Morales Inc., 138 Nev. Adv. Op. No. 38, ___ P.3d ___ (June 2, 2022).

Civil procedure: NRCP 4.2(d)(6) requires the district court to allow a plaintiff a reasonable time to cure defects in service, even after the generally applicable 120-day service period under NRCP 4.2(e) expires, if the party has timely fulfilled at least one of the two service requirements under NRCP 4.2(d)(2) for service on public officers and employees sued over acts or omissions relating to their duties or employment, regardless of whether the plaintiff has filed a motion for an extension of time pursuant to NRCP 4(e)(3). Here, because the plaintiff timely served the remaining respondents according to NRCP 4.2(d)(2)(A), he was entitled to additional time under NRCP 4.2(d)(6) to comply with the second service requirement under NRCP 4.2(d)(2)(B), despite the fact that the 120-day service period under NRCP 4(e) had passed. Moreover, the plaintiff alleged sufficient facts to state a claim for relief under 42 U.S.C. § 1983 based on alleged deliberate indifference to serious medical needs. Harris v. State, 138 Nev. Adv. Op. No. 40, ___ P.3d ___(June 2, 2022).

Criminal statutes of limitations: In this case involving sexual abuse of children, the statute of limitations did not preclude charges brought against Defendant Christopher Sena because of two factors: (1) The crimes associated with his daughter were not barred by the statute of limitations because they remained undiscovered under the law until she left the home; and (2) the other crimes were not barred by the statute of limitations because they were conducted in a secret manner, and his wife’s and ex-wife’s knowledge of the crimes did not constitute discovery since each of them were acting in pari delicto with Sena. This case presented a novel issue regarding the correct unit of prosecution for the crime of incest. Under the doctrine of lenity, the unit of prosecution is per victim, not per instance. Thus, Sena should only have been charged with three counts. Additionally, counts 60 and 116 were redundant of other charged possession-of-child- pornography counts and were vacated, as the State charged Sena with possessing the child pornography on the same day and on the same device without asserting distinct instances of possession. Lastly, Sena was improperly charged with two counts of child abuse, neglect, or endangerment via sexual abuse when he should have only been charged with one count, as it is a continuing crime. Sena (Christopher) v. State, 138 Nev. Adv. Op. No. 34, ___ P.3d ___ (May 26, 2022).

Evidence: (1) A juror may make personal observations and draw general inferences regarding the similarities between footwear impressions and footwear; and (2) such evidence generally need not be supported by expert testimony to be admissible. At Footnote 9, the Court emphasized that “[t]his is not to say that expert testimony regarding footwear impressions is never necessary for such evidence’s admission.” Depending on the circumstances surrounding either the evidence or the nature of the testimony, expert testimony may be appropriate. The Supreme Court of Nevada addressed two additional issues. First, the Court considered whether the district court violated the defendant’s rights under the Confrontation Clause by allowing a witness to testify via two-way video. In-person cross-examination may not be required under the Confrontation Clause if “denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured,” but the district court must first find that this alternative method of testimony is necessary. Even where a Confrontation-Clause error occurs, “reversal is not required ‘if the State could show beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’” Second, although the Supreme Court of Nevada has never addressed whether a court may limit testimony in a criminal trial to protect proprietary rights in trade secrets, both Nevada and federal law accord special protection to trade secrets in civil litigation. In considering whether to limit cross-examination regarding trade secrets, a court should consider whether, given the importance of the private interest at stake, the cross-examination is designed to harass, annoy, or humiliate the witness; whether it would cause prejudice or place the witness in danger; and whether it would confuse the issues, be repetitive of other testimony, be speculative or vague, or be only marginally relevant. Brown (Larry) v. State, 138 Nev. Adv. Op. No. 44 , ___ P.3d ___ (June 23, 2022).

Experts: In this opinion addressing the standard for substituting an expert witness after the close of discovery, the Supreme Court of Nevada clarified that NRCP 16(b)(4)’s good-cause standard for modifying a scheduling order provides the proper standard for considering such motions and that the district court should also apply any relevant local discovery rules, such as EDCR 2.35(a) in this case, in its evaluation. The district court’s consideration extends beyond simply deciding if the substitute expert witness would be appropriate and includes evaluating how the whole case would be affected with the new discovery deadlines. Thus, evaluation under NRCP 16(b)(4) is the more appropriate mechanism of review as it is more extensive than a review under NRCP 37(c)(1). Here, the district court did not abuse its discretion in modifying the existing scheduling order, reopening discovery for a limited purpose, and allowing the substitution regarding an expert witness. When considering whether there is good cause to modify a scheduling order, the district court must first consider the moving party’s diligence.If the party acted diligently, the district court will then consider whether the delay will prejudice the nonmoving party. Because EDCR 2.35(a) is also relevant in the underlying situation, the court must also consider whether the moving party demonstrated that its failure to act was the result of excusable neglect. Excusable neglect is “not because of the party’s own carelessness, inattention, or willful disregard of the court’s process, but because of some unexpected or unavoidable hindrance.” The record here supports the district court’s findings that there was good cause, diligence, lack of prejudice, and excusable neglect. Torremoro v. Dist.Ct. (Compton), 138 Nev. Adv. Op. No. 54, ___ P.3d ___ (July 7, 2022).

Homeowner’s associations: (1) A homeowner’s association (HOA) had no statutory duty to record whether tender of the superpriority portion of their lien on a property was made until 2015, when the Legislature amended NRS 116.31164 to impose such a duty; and (2) given the lack of such a statutory duty and Appellant’s failure to demonstrate a genuine issue of material fact with respect to any alleged false representation or material omission, the district court’s summary judgment on Appellant’s misrepresentation claim was proper. This case stems from a quiet-title action involving a foreclosed property located in an HOA community and sold by the HOA to a subsequent purchaser at a foreclosure sale. In the alternative to seeking quiet title, the subsequent purchaser asserted a misrepresentation claim against the HOA and its agent based upon their failure to disclose and publicly record that the servicer of the original loan for the property had tendered the superpriority portion of the HOA’s lien prior to the sale. After concluding that jurisdiction over this appeal was proper, the Supreme Court of Nevada held that the subsequent purchaser failed to sufficiently allege that the HOA or its agent misrepresented information regarding a tender. To the extent that the misrepresentation claim was premised on a failure to proactively record that a tender had been made, the claim failed as a matter of law because there was no statutory duty for an HOA to record a tender of the superpriority portion of the lien on the property before 2015, when the Legislature amended NRS 116.31164(2) to so provide. Saticoy Bay, LLC Ser. 34 Innisbrook v. Thornburg Mortg. Sec. Tr. 2007-3, 138 Nev. Adv. Op. No. 35, ___ P.3d ___ (May 26, 2022).

Initiative petitions: (1) Even if an initiative petition proposes more than one change to Nevada law, it may still meet the single-subject requirement, provided that the proposed changes are functionally related and germane to each other and a single subject; and (2) the initiative petition here meets that requirement; although it proposes two changes (open primary elections and ranked-choice general elections for specified officeholders), both changes are functionally related and germane to each other and the single subject of the framework by which specified officeholders are presented to voters and elected. The Supreme Court of Nevada further held that the initiative petition’s description of effect is straightforward, succinct, and nonargumentative, and appellant failed to demonstrate that the proposal requires the expenditure of money without providing a funding source. Helton v. Nev. Voters First PAC (Ballot Issue), 138 Nev. Adv. Op. No. 45, ___ P.3d ___ (June 28, 2022).

Initiative petitions: Article 19 of the Nevada Constitution sets out the initiative petition process, does not specifically bar withdrawal of an initiative petition, and permits the Legislature to enact statutes facilitating the initiative-petition process. NRS 295.026 facilitates this process by stating the withdrawal power and imposing deadlines on its exercise. The statute gives petition sponsors the ability to respond to changed circumstances and clarity as to how and when withdrawal is performed. NRS 295.026 is thus facially constitutional. Also, NRS 295.026 provides that no action may be taken on a petition that has been timely withdrawn. Thus, a withdrawn petition is void. Because the petitions here are void, the Secretary’s duty to place them on the ballot has been nullified, consistent with Nevada precedent barring placement of void initiative petitions on the ballot, regardless of whether they have been verified. Withdrawal of initiative petitions does not infringe upon any constitutional right. Cegavske v. Hollowood (Ballot Issue), 138 Nev. Adv. Op. No. 46, ___ P.3d ___ (June 28, 2022).

Initiative petitions: (1) Under the Nevada Constitution, an initiative petition cannot require appropriations or expenditures without providing funding for those appropriations or expenditures, and this requirement applies to initiatives proposing constitutional or statutory changes; (2) the description of effect for an initiative petition must adequately inform potential signatories about the petition’s goal; (3) an initiative petition cannot invade the Legislature’s primary role of proposing and enacting laws, a function that inherently includes deliberation and debate during legislative sessions, by directing a future Legislature to enact certain laws; this occurs when an initiative petition omits necessary statutory or constitutional changes and instead proposes a general idea and then directs the Legislature to enact laws to effectuate that idea in the future; and (4) the initiative here falls short of these requirements. Appellant Education Freedom PAC (EFP) sought to place an initiative on the ballot that would amend the Nevada Constitution to require the Legislature to establish education freedom accounts for parents to use to pay for their child’s education if their child is educated outside the uniform system of common schools. In this opinion, the Supreme Court of Nevada held that the district court properly enjoined the circulation of the initiative petition and enjoined respondent Secretary of State from placing the initiative on the ballot. Separately, the Court concluded that the statutory requirement to set a hearing on a complaint challenging an initiative within 15 days is directory, not mandatory, and under the circumstances here, the district court properly declined to dismiss the complaint despite not having set the hearing within that time frame. Ed. Freedom PAC v. Reid (Ballot Issue), 138 Nev. Adv. Op. No. 47, ___ P.3d ___ (June 28, 2022).

Murder: The district court’s murder instruction was inaccurate in that it provided an alternate theory of murder liability that was both incomplete and irrelevant, and it had the effect of relieving the jury of its burden to find that the defendant had acted with malice aforethought. Along with the duty to correctly instruct the jury on relevant general principles of law, the trial court “has the correlative duty to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.” Here, the court instructed on an irrelevant legal principle–second-degree felony murder–in an incomplete way, which relieved the jury from making findings relevant to the theory of murder actually at issue. And even if second-degree felony murder were in play, instruction 11(2) did not inform the jury of the critical “restrictions” that have been placed on the doctrine. Namely, the instruction did not require the jury to find an appropriate predicate felony; it did not explain that the predicate felony must be inherently dangerous; and it did not instruct the jury that it must find an immediate and direct causal relationship between the defendant’s acts and the victim’s death. Lastly, the language regarding an unintentional killing did not require the jury to find that the defendant acted with malice aforethought, as required under the depraved-heart theory of murder. Even though a jury could have ultimately concluded that the defendant acted with implied malice, the errors identified here fundamentally undermined confidence in the murder conviction, so that conviction was reversed. Guidry (Ronneka) v. State, 138 Nev. Adv. Op. No. 39, ___ P.3d ___ (June 2, 2022).

Paternity: (1) Here, the district court correctly interpreted and applied the Nevada Parentage Act (NPA) in concluding that respondent is conclusively presumed to be the child’s legal father based on positive DNA test results and that his status as such gives him rights incident to a parent and child relationship.; (2) the district court’s finding of paternity authorized it, under NRS 126.161(4), to make an initial determination of custody as between the child’s mother and his biological father; and (3) the district court’s order establishing joint physical custody comported with the record evidence and the preferences stated in NRS Chapter 125C. The NPA, contained in NRS Chapter 126, provides the framework by which a person may establish legal parentage of a child. NRS Chapter 125C, in turn, governs child custody and visitation issues, with the best interest of the child guiding the court’s decision in such matters. Appellants argued that the district court misinterpreted and misapplied the NPA in concluding that respondent has legal parental rights as to the minor child at issue solely because conclusive DNA test results show that respondent is the child’s biological father. Appellants also challenged the district court’s resultant child-custody decision awarding respondent joint physical custody with the child’s mother, arguing that, in addition to being based on an erroneous parentage decision, the court failed to apply the relevant provisions of NRS Chapter 125C and failed to make on-the-record factual findings to support its assessment of the child’s best interest in determining physical custody and parenting time. The Supreme Court of Nevada disagreed and affirmed the lower court. Martinez v. Avila, Jr. (Child Custody), 138 Nev. Adv. Op. No. 49, ___ P.3d ___ (June 30, 2022).

Political-question doctrine: (1) The Nevada Constitution demonstrates a clear, textual commitment of public education to the Nevada Legislature by granting the Legislature broad discretionary authority; and (2) because the claims here are inextricably linked to the textual commitment of public education to the Legislature under the Nevada Constitution, the claims are nonjusticiable. The underlying causes of action were based on the State’s purported failure to provide Nevada’s students with a qualitatively and quantitatively sufficient education as required by Article 11, Sections 1, 2, and 6 of the Nevada Constitution. Under the political-question doctrine, controversies are precluded from judicial review when they revolve around policy choices and value determinations constitutionally committed for resolution to the legislative and executive branches. A reviewing court must consider factors from Baker v. Carr, 369 U.S. 186 (1962), to determine whether an issue presents a nonjusticiable political question. Here, the Supreme Court of Nevada held that, “in Nevada, dismissal based on the political question doctrine requires a showing that the political question has an inextricable link between one of the Baker factors and the controversy at issue.” The Court concluded that “the plain language of Article 11, Section 6 of the Nevada Constitution vests sole discretion to determine the sufficiency of Nevada’s education funding in the Legislature.” Accordingly, the claims at issue do not present justiciable questions appropriate for adjudication, and judicial review is precluded by the political-question doctrine. These claims are more properly resolved through the legislative process or by initiative petition. Shea v. State, 138 Nev. Adv. Op. No. 36, ___ P.3d ___ (May 26, 2022).

Post-conviction petition for habeas corpus: While the district court properly denied most of the claims in Appellant Marlo Thomas’s postconviction petition as procedurally barred, the district court erred when it denied two claims without conducting an evidentiary hearing. Consistent with Chappell v. State, 137 Nev., Adv. Op. 83, 501 P.3d 935 (2021), Thomas timely asserted the alleged ineffective assistance of second postconviction counsel as good cause and prejudice to raise procedurally barred grounds for relief from the death sentences imposed at the penalty-phase retrial. But also consistent with Chappell, the Court concluded that he failed to demonstrate good cause and prejudice to raise any other procedurally barred grounds for relief. Among Thomas’s allegations that second postconviction counsel provided ineffective assistance, the Court concluded that these two claims warrant an evidentiary hearing:

  1. His claim that second postconviction counsel failed to present compelling mitigation evidence to support the claim that penalty-phase counsel provided ineffective assistance in developing and presenting the mitigation case at the penalty-phase retrial; and
  2. His claim that second postconviction counsel should have alleged that penalty-phase counsel provided ineffective assistance during jury selection by failing to question, challenge for cause, or peremptorily challenge a veniremember who indicated she favored the death penalty, was not open to a sentence that would allow for parole, and could not consider mitigating circumstances.

The Court reversed the district court’s order and remanded for an evidentiary hearing regarding those claims. Thomas (Marlo) v. State (Death Penalty-PC), 138 Nev. Adv. Op. No. 37, ___ P.3d ___ (May 26, 2022).

Tax sales: NRS 361.610 requires a former property owner to submit a timely claim in order to receive excess proceeds after a tax sale. Under NRS 361.610, claims for a tax sale’s excess proceeds must be made within one year. In this opinion, the Supreme Court of Nevada interpreted NRS 361.610 for the first time in order to determine whether it allows a former property owner to file a claim for excess proceeds outside of the one-year deadline where a tenant in common has filed a timely claim. After examining NRS 361.610 as a whole and reviewing its legislative history, the Court concluded that NRS 361.610 requires each claimant to timely file a claim to receive its share of excess proceeds. Because appellant did not timely file its claim, the Court affirmed the district court’s decision to deny appellant’s petition for a writ of mandamus. Artmor Invs., LLC v. Nye Cty., 138 Nev. Adv. Op. No. 53, ___ P.3d ___ (July 7, 2022).

Torts: A plaintiff is not damaged for purposes of a common-law fraudulent concealment claim or an NRS 41.600 consumer-fraud claim when he or she receives the true value of the good or service purchased. A plaintiff must demonstrate five elements to establish a prima facie case of fraudulent concealment under Nevada law:

  1. The defendant concealed or suppressed a material fact;
  2. The defendant was under a duty to disclose the fact to the plaintiff;
  3. The defendant intentionally concealed or suppressed the fact with the intent to defraud the plaintiff; that is, the defendant concealed or suppressed the fact for the purpose of inducing the plaintiff to act differently than she would have if she had known the fact;
  4. The plaintiff was unaware of the fact and would have acted differently if she had known of the concealed or suppressed fact; and
  5. As a result of the concealment or suppression of the fact, the plaintiff sustained damages.

A common-law fraudulent concealment claim requires a plaintiff to demonstrate that they either did not receive the benefit of the bargain or show out-of-pocket losses caused by the defendant’s alleged misrepresentation. An act of concealment does not, in and of itself, lead to a cognizable injury under the common law; instead, a corresponding showing that such concealment caused the plaintiff cognizable damages is required. Where a plaintiff received the value of their purchase, they cannot demonstrate that they did not receive the benefit of their bargain or show any out-of-pocket losses, because the value of the goods or services they received is equal to the value that they paid. Here, because appellants received the full value of the amenities covered by their resort fee, they did not suffer any damages. A similar analysis applies to consumer fraud under NRS 41.600. Where, as here, the plaintiffs assert only economic injury but have received the true value of their goods or services, the plaintiffs have not been injured and thus have not “sustained” any damages by the defendant’s conduct under NRS 41.600(3)(a). Leigh-Pink v. Rio Properties, LLC (NRAP 5), 138 Nev. Adv. Op. No. 48, ___ P.3d ___ (June 30, 2022).

Water: (1) Under NRS 534.110(7), the State Engineer may designate an over-appropriated basin a Critical Management Area (CMA); (2) once designated a CMA, NRS 534.037 allows water permit and certificate holders (rights holders) to petition the State Engineer to approve a Groundwater Management Plan (GMP) that sets forth the necessary steps for removal of the basin’s designation as a CMA; (3) in determining whether to approve the GMP, the State Engineer is required to weigh factors under NRS 534.037(2); and (4) the Legislature unambiguously gave the State Engineer discretion to approve a GMP that departs from the doctrine of prior appropriation and other statutes in Nevada’s statutory water scheme. Construing NRS 534.037 and NRS 534.110(7) together, the Supreme Court of Nevada concluded that these statutes plainly and unambiguously allow the State Engineer to approve a GMP so long as the State Engineer concludes that the GMP (1) “set[s] forth the necessary steps for removal of the basin’s designation as a [CMA],” and (2) is warranted under the factors in NRS 534.037(2). Because the statutes plainly allow the State Engineer to approve a GMP based on the preceding criteria, and because they are silent as to other aspects of Nevada’s statutory water scheme, the Court rejected the argument that a GMP must strictly comply with the doctrine of prior appropriation. This opinion will significantly affect water management in Nevada. The Court was “of the belief, however, that–given the arid nature of this State–it is particularly important that we effectuate the plain meaning of a statute that encourages the sustainable use of water.” Diamond Nat. Res. Prot. and Conservation Ass’n v. Diamond Valley Ranch, LLC, 138 Nev. Adv. Op. No. 43, ___ P.3d ___ (June 16, 2022).

Court of Appeals

Appeals: When a district court provides alternative bases to support its ultimate ruling, and an appellant fails to challenge the validity of each alternative basis on appeal, an appellate court will generally deem that failure a waiver of each such challenge and thus affirm the district court’s judgment. Here, the district court dismissed the operative complaint in the proceedings below on several alternative grounds and denied the appellants’ motion to amend. But in their opening brief on appeal, the appellants failed to challenge each of the alternative grounds for dismissal, instead attempting to raise such arguments for the first time in their reply brief. Consequently, the Court of Appeals concluded that the appellants waived each such challenge, thereby foreclosing their appeal as it concerns the district court’s dismissal ruling. Hung v. Berhad, 138 Nev. Adv. Op. No. 50, ___ P.3d ___ (June 30, 2022).

Child custody: (1) When a district court seeks to determine if the movant has demonstrated a prima facie case for modification under Rooney v. Rooney, 109 Nev. 540, 853 P.2d 123 (1993), it must generally consider only the properly alleged facts in the movant’s verified pleadings, affidavits, or declarations, and it must not consider the alleged facts or offers of proof the nonmovant provides; and (2) as an exception to this general rule, a district court may look to the nonmovant’s evidentiary support when it “conclusively establishes” the falsity of the movant’s allegations. In determining whether a movant has demonstrated a prima facie case for modification of physical custody, the court must accept the movant’s specific allegations as true. Thus, the district court should not require that the movant prove his or her allegations before holding an evidentiary hearing. Furthermore, a district court should not weigh the evidence or make credibility determinations before holding an evidentiary hearing. The Court of Appeals recognized that nonmovants may allege facts and provide offers of proof that may address the allegations the movant has presented. While district courts may only weigh credibility and evidence at an evidentiary hearing, they nonetheless need not blind themselves to evidence a nonmovant presents if it “conclusively establish[es]” the movant’s claims are false. Adopting this limited exception serves the purposes for which Rooney was adopted in the first place; (1) discouraging contests over temporary custody; and (2) preventing repeated or insubstantial motions for modification. Additionally, in determining whether the movant has demonstrated a prima facie case for modification, district courts need not consider facts that are irrelevant to the grounds for modification, that are cumulative, or that are impeaching. Nor need courts consider allegations which, even if proven, would only “permit inferences sufficient to establish grounds for a custody change.” Also, courts are not required to consider a movant’s general, vague, broad, or conclusory allegations. Finally, the district court need not consider facts alleged or exhibits filed that are not supported by verified pleadings, declarations, or affidavits. Myers v. Haskins (Child Custody), 138 Nev. Adv. Op. No. 51, ___ P.3d ___ (June 30, 2022).


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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