Nevada Appellate Court Summaries (9-1-22)

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

Child support: (1) NAC 425.150(1) provides district courts with discretion to adjust a child- support obligation based on eight factors and in accordance with the child’s specific needs and the parties’ economic circumstances; but (2) when a court orders an upward adjustment based on NAC 425.150(1)(f), the relative income of the households, the amount of the other party’s total obligation caps the upward adjustment. Here, although an upward adjustment was allowed by NAC 425.150 and was supported by the district court’s findings on the relevant factors, the district court erred by exceeding the NAC 425.150(1)(f) cap. Matkulak v. Davis, 138 Nev. Adv. Op. No. 61, ___ P.3d___ (September 1, 2022).

Consumer fraud: Under NRS 41.600(1), a “victim” is any person who was directly harmed by consumer fraud. The Supreme Court of Nevada explained that “[t]here is no product-use requirement–a ‘victim’ can be a consumer, a business competitor, or as applicable here, ‘any person’ who suffered harm from the defendant’s consumer fraud.” Here, Sandra Camacho began smoking cigarettes in 1964 and continued until 2017. While Sandra did not use any of petitioner R.J. Reynolds Tobacco Company’s products, she pleaded that she would not have smoked tobacco and, consequently, would not have suffered cancer, but for the deceptive trade practices engaged in by Reynolds and other tobacco companies. Such an allegation is sufficient, at the motion-to-dismiss stage, for the Camachos to proceed on their claim against Reynolds under NRS 41.600(1) for a Nevada Deceptive Trade Practices Act (NDTPA) violation, as they alleged a direct harm from Reynolds’ allegedly deceptive trade practices. R.J. Reynolds Tobacco Co. v. Dist. Ct. (Camacho), 138 Nev. Adv. Op. No. 55, ___ P.3d ___ (July 28, 2022).

Criminal procedure: Here, because the plain language of NRS 176.211(3)(a)(1) requires the district court to defer judgment where the defendant consents to deferral and enters a plea of guilty to a violation of NRS 453.336(2)(a), and appellant satisfied the preconditions for such deferral, the district court erred by entering the judgment of conviction. NRS 453.336(2)(a) mandates, consistent with NRS 176.211, judgment deferral on the consent of the defendant for a guilty plea to a first- or second-time offense of possession of less than 14 grams of a schedule I or II controlled substance. NRS 176.211(3)(a)(1) similarly requires the court to defer judgment on the consent of the defendant for a guilty plea to a violation of NRS 453.336(2)(a). NRS 176.211(1) is not applicable to such situations, as its plain language gives the court discretion to defer judgment for offenses not specifically identified elsewhere in the statute. Because NRS 176.211(3)(a)(1) targets a specific drug-possession offense, a guilty plea that falls within its ambit excludes the application of NRS 176.211(1). Here, the defendant undisputedly pleaded guilty to a first-time violation of NRS 453.336(2)(a) and consented to deferral by his treatment election. Thus, the district court lacked discretion to decline to defer judgment. Locker v. State, 138 Nev. Adv. Op. No. 62, ___ P.3d ___ (September 1, 2022).

Employment: (1) Appellants’ wage claims under NRS 608.016, NRS 608.018, and NRS 608.020 through NRS 608.050 were correctly dismissed under a two-year limitations period; (2) a collective bargaining agreement (CBA) is valid so long as the employer and the union objectively manifest their assent to the agreement; (3) when a valid CBA exists, individual employees lack standing to represent union members in a class-action lawsuit unless they allege that the union failed to fairly represent its members; (4) claims under NRS 608.040, which penalizes employers for failing to timely pay earned wages to former employees, cannot be utilized to recover wages that are time-barred under other statutes; and (5) an employer that is a party to a CBA is exempt from Nevada’s overtime statute, NRS 608.018, when the CBA provides overtime in a manner different from the statute. Regarding the second issue, the technical rules of contract formation do not control whether a CBA has been reached. Instead, the validity of a CBA rests ultimately on the principle of mutual assent, and “[u]nion acceptance of an employer’s final offer [for a CBA] is all that is necessary to create a contract.” Thus, even if a CBA does not strictly adhere to contractual formalities, it is valid if evidence shows that the employer and the union objectively manifested assent to the agreement. Regarding the fifth issue, NRS 608.018 sets forth certain overtime rates that employers must pay, but it provides an exemption for “[e]mployees covered by collective bargaining agreements which provide otherwise for overtime” (emphasis added). Under NRS 608.018(3)(e)’s plain language, a CBA qualifies for the overtime exemption so long as it provides overtime in a different way or manner than NRS 608.018(1)(2). Martel v. HG Staffing, LLC, 138 Nev. Adv. Op. No. 56, ___ P.3d ___ (August 11, 2022).

Employment: (1) NRS 613.333 creates a private right of action in favor of an employee who is discharged from employment for engaging in “the lawful use in this state of any product outside the premises of the employer during the employee’s nonworking hours”; and (2) adult recreational marijuana use does not qualify for protection under this statute. Although Nevada has decriminalized adult recreational-marijuana use, the drug continues to be illegal under federal law. Because federal law criminalizes the possession of marijuana in Nevada, its use is not “lawful . . . in this state” and does not support a private right of action under NRS 613.333. Further, because NRS 678D.510(1)(a) authorizes employers to prohibit or restrict recreational marijuana use by employees, an employee discharged after testing positive at work based on recreational marijuana use does not have a common-law tortious-discharge claim. Ceballos v. NP Palace, LLC, 138 Nev. Adv. Op. No. 58, ___ P.3d ___ (August 11, 2022).

Homeowners’ associations: Pursuant to NRS 116.340(1)(a), members of a common-interest community may use their units for transient commercial use, such as short-term vacation rentals, even when the association’s governing documents contain a “residential-use” restriction, so long as the governing documents do not prohibit transient commercial use. “[B]ecause NRS 116.340(1) allows homeowners in common-interest communities with residential use restrictions to use their units for transient commercial use, unless the community’s governing documents otherwise prohibit transient commercial use, and the Bylaws and Rules here do not prohibit such use, we conclude that the district court abused its discretion by granting respondents’ motion for a preliminary injunction . . . .” Elk Point CC HOA v. K.J. Brown, LLC, 138 Nev. Adv. Op. No. 60, ___ P.3d ___ (August 18, 2022).

Intervention: The district court has no discretion to allow intervention after it has entered final judgment in an action. An entity has a right to intervene in an action where it shows that

            (1) it has a sufficient interest in the subject matter of the litigation;

            (2) its ability to protect its interest would be impaired if it does not intervene;

            (3) its interest is not adequately represented; and

            (4) its application is timely.

NRS 12.130(1)(a) further outlines that intervention may be permitted “[b]efore the trial” and “does not permit intervention subsequent to the entry of a final judgment.” In the instant case, petitioner Las Vegas Police Protective Association (LVPPA) sought to intervene after the district court ordered the permanent injunction that constituted the final judgment in the proceedings below. Thus, the district court properly denied LVPPA’s motion to intervene as untimely. Additionally, the Supreme Court of Nevada considered whether LVPPA was a necessary party to the action. Under NRCP 19, a district court is required to join an entity if (1) in the entity’s absence, “the court cannot accord complete relief among existing parties”; or (2) the entity has an interest relating to the subject of the action and its absence may “impair or impede the [entity]’s ability to protect the interest” or subject an existing party to the action “to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.” NRS 289.080 does not impose any affirmative duties on LVPPA, and the right to choose representatives during an investigation belongs to the peace officer. It follows that a district-court decision resolving a complaint concerning a peace officer’s selected representatives does not “impair or impede” any interest held by LVPPA under that statute. Thus, LVPPA did not have a valid interest that made it a necessary party to the underlying litigation between a peace officer and the Las Vegas Metropolitan Police Department (LVMPD). LVPPA v. Eighth Jud. Dist. Ct., 138 Nev. Adv. Op. No. 59, ___ P.3d ___ (August 18, 2022).

Receivers: Here, the district court abused its discretion in denying the lender’s request for the appointment of a receiver after the borrower defaulted on a real-property loan agreement. The borrower owns properties housing multi-family apartment complexes. The lender observed a significant decrease in occupancy after the borrower assumed ownership. The lender’s inspector observed that significant repairs were needed, and the lender demanded deposits into repair and replacement escrow accounts, relying on specific provisions in the loan agreements. The borrower did not make the demanded deposits, which the lender deemed a default under the loan agreements. The lender sued and sought a receiver. The borrower countersued, alleging breach of contract and seeking a preliminary injunction. The district court found that there was no default and issued a wide-ranging preliminary injunction, reaching matters that had been neither briefed nor argued. On appeal, the Supreme Court of Nevada emphasized that it had not previously had cause to interpret NRS 32.260(2)(b) and NRS 107A.260(1)(a)(1), which provide that a lender is entitled to the appointment of a receiver when the borrower agrees to such in the event of a default and, after a default, the lender seeks a receiver in enforcing the loan, NRS 32.260(2), or the property is subject to the assignment of rents, NRS 107A.260(1). As the lender has an entitlement to a receiver in such instances, appointment of a receiver is not subject to the district court’s discretion. The agreement itself may state what circumstances constitute a default. Here, the district court erred in disregarding the loan agreements’ clear provisions setting forth what constituted a default. The borrower failed to perform several duties mandated under the loan agreements, including the duty to make the demanded deposits, and this failure constituted default. As the borrower agreed to the provisions in the loan documents stating that the lender may obtain a receiver in the event of default, the lender was entitled to the appointment of a receiver on the borrower’s default, and the district court abused its discretion in refusing to appoint one. The district court further abused its discretion in issuing a preliminary injunction because it rested its order on clearly erroneous factual determinations, did not apply the relevant standards for injunctive relief, and failed to recognize the lender’s entitlement to a receiver. At Footnote 6, the Supreme Court stated that while “[i]t is common practice for Clark County district courts to direct the prevailing party to draft the court’s order,” the court must “ensure that the proposed order drafted by the prevailing party accurately reflects the district court’s findings.” The Supreme Court urged prevailing parties to take appropriate care to submit suitable draft orders that accurately reflect the findings, and district courts to scrutinize those draft orders, being mindful that they assume responsibility for those findings and attendant rulings upon entry of the order. Fed. Nat’l Mortg. Ass’n v. Westland Liberty Vill., LLC, 138 Nev. Adv. Op. No. 57, ___ P.3d ___ (August 11, 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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