Nevada Appellate Court Summaries 9-3-20

By Joe Tommasino, Esq.

Supreme Court of Nevada

Torts: (1) As a general principle, a plaintiff suing in tort can only recover once for a single injury, even when several defendants are responsible for that injury; (2) this appeal concerns the applicability of NRS 17.245(1)(a), which enables a nonsettling tortfeasor to equitably offset a judgment by the settlement amount obtained from a settling tortfeasor “for the same injury”; and (3) when considering if NRS 17.245(1)(a)’s settlement offsets apply, district courts must determine whether both the settling and the nonsettling defendants were responsible for the same injury. NRS 17.245(1)(a) enables a plaintiff to simultaneously settle with one tortfeasor and proceed to trial against another tortfeasor. However, to prevent double recovery to the plaintiff, the statute also provides that claims against nonsettling tortfeasors must be reduced by the amount of any settlement with settling tortfeasors. Because NRS 17.245(1)(a) applies to “two or more persons liable in tort for the same injury,” and because the plain language of the statute imposes no requirement as to the relationship of the defendants, the Supreme Court of Nevada rejected the contention that the application of settlement offsets pursuant to NRS 17.245(1)(a) first requires a finding of joint tortfeasor liability. Instead, as the district court properly determined, the relevant question governing the applicability of NRS 17.245(1)(a) for the purposes of settlement offsets is whether both the settling and remaining defendants caused the same injury.The Supreme Court held that “in determining whether NRS 17.245(1) requires a judgment to be offset by a settlement amount, the inquiry begins and ends with a determination of a single and indivisible injury.” The Supreme Court further held that independent causes of action, multiple legal theories, or facts unique to each defendant do not foreclose a determination that both the settling and nonsettling defendants bear responsibility for the same injury pursuant to NRS 17.245(1)(a). Having determined the appropriate inquiry under NRS 17.245(1)(a), the Supreme Court then concluded that substantial evidence supports the district court’s finding that the settling defendants and the sellers’ agents caused the “same injury.” The Court emphasized that “causes of action unique to settling and nonsettling defendants do not automatically preclude a determination that all defendants caused the same injury under the statute.” Finally, the Court considered whether the district court correctly calculated the judgment offset amount. Whether NRS 17.245(1)(a) requires district courts to automatically deduct the entirety of a settlement award, without considering the makeup of the award in relation to the judgment against the nonsettling defendants, presented a question of law that the Supreme Court reviewed de novo. NRS 17.245(1)(a) “reduces the claim against the [nonsettling defendants] to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater.” While the plain language of the statute could be interpreted as permitting the reduction of the entire settlement amount obtained—without regard to the type of exposure resolved by the settling defendants—the Court reasoned that such an interpretation violates the spirit of NRS 17.245(1)(a). The principal purpose of equitable settlement offsets under the statute is “to prevent double recovery to the plaintiff”—or in other words, to guard against windfalls. Because the principal purpose of equitable settlement offsets is to avoid windfalls, it would be inconsistent with the legislative intent of NRS 17.245(a)(1) to then permit the blanket deduction of entire settlement amounts without scrutinizing the allocation of damages awarded therein. Specifically, actual damages “redress the concrete loss that the plaintiff has suffered by reason of the defendant’s wrongful conduct.” Treble damages, on the other hand, represent “[d]amages that, by statute, are three times the amount of actual damages that the fact-finder determines is owed.” Thus, ensuring that a plaintiff does not recover twice for the same injury does not mean that a plaintiff should otherwise be precluded from receiving the portion of a settlement award that resolves a settling defendant’s exposure beyond actual damages—such as treble or punitive damages—if such exposure is unique to the settling defendant. To conclude otherwise would penalize the plaintiff, while granting a windfall to the nonsettling defendant. Accordingly, the Court rejected the argument that NRS 17.245(1)(a) requires the automatic deduction of the entire settlement amount from a nonsettling defendant’s judgment. Instead, the Court concluded that settlement offset calculations pursuant to NRS 17.245(a)(1) must adhere to the statute’s goal of avoiding windfalls, which necessarily includes restricting the settlement credit to the amount that fully compensates the plaintiff’s injury and does not otherwise provide for double recovery. Here, the district court appropriately accounted for the treble damages associated with the sellers’ settlement in offsetting the judgment, and the district court correctly calculated the judgment offset amount pursuant to NRS 17.245(1)(a). J.E. Johns & Assocs. v. Lindberg, 136 Nev. Adv. Op. No. 55, ___ P.3d ___ (August 20, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Trusts: When a Nevada court assumes jurisdiction of a revocable nontestamentary trust under NRS 164.010, and an interested person challenges the settlor’s or trustee’s fitness to amend a trust instrument in accordance with NRS 164.015, the district court must hold an evidentiary hearing, make factual findings, and issue an order that is appealable to the Supreme Court of Nevada prior to enforcement of the challenged trust. NRS 164.015 sets forth procedures for when “an interested person contests the validity of a revocable nontestamentary trust” over which the district court has jurisdiction pursuant to NRS 164.010. A written challenge to the validity of the trust is treated as a pleading, whether it is raised by a petitioner or by an objector. When such a challenge is made, NRS 164.015(4) provides that

the competency of the settlor to make the trust, the freedom of the settlor from duress, menace, fraud or undue influence at the time of execution of the will, the execution and attestation of the trust instrument, or any other question affecting the validity of the trust is a question of fact and must be tried by the court . . . .

(Emphasis added.) Based on the plain language above, district courts clearly must resolve questions of fact in a trial before the court. At a minimum, an evidentiary hearing is required on the factual question raised in the challenge under NRS 164.015. Here, the district court noted concerns relating to capacity at several points, but it never resolved the factual question in accordance with NRS 164.015. Thus, the district court erred. The district court should have held an evidentiary hearing, made factual findings, and properly resolved capacity in a final appealable order before enforcing amendments to the trust. In re: Frasier Family Trust, 136 Nev. Adv. Op. No. 56, ___ P.3d ___ (August 27, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Nevada Court of Appeals

Special Immigrant Juvenile (SIJ) status: (1) NRS 3.2203 provides that Nevada district courts may, in certain proceedings, make the predicate factual findings necessary for an individual to apply for Special Immigrant Juvenile (SIJ) status with the United States Citizenship and Immigration Services of the Department of Homeland Security (USCIS); (2) a party requesting predicate factual findings under NRS 3.2203 need only show that such findings are warranted by a preponderance of the evidence, which is the minimum civil standard of proof, rather than the heightened standard applicable in termination proceedings; and (3) district courts should consider the entire history of the relationship between a parent and child when evaluating the practical workability of reunification in light of past abuse or neglect. Obtaining SIJ status—which allows undocumented juveniles to acquire lawful permanent residency in the United States—is a process involving state and federal law. NRS 3.2203 sets forth the mechanism by which an aspiring applicant may obtain SIJ predicate findings, which “may be made by the district court at any time during a proceeding held pursuant to [various chapters of the Nevada Revised Statutes].” Pursuant to NRS 3.2203(3), a person may include in a petition or motion made in various types of proceedings, including guardianship proceedings under NRS Chapters 159 and 159A, a request that the district court make the following predicate findings to allow the subject juvenile to apply for SIJ status:

(1) the juvenile is dependent on a juvenile court, the juvenile has been placed under the custody of a state agency or department, or the juvenile has been placed under the custody of an individual appointed by the court (dependency-or-custody prong);

(2) due to abandonment, abuse, neglect, or some comparable basis under state law, the juveniles reunification with one or both parents is not viable (reunification prong); and

(3) it is not in the juvenile’s best interest to be returned to the country of the juveniles origin (best-interest prong).

If the district court determines that there is evidence to support all the findings—including, but not limited to, a declaration from the subject juvenile—it “shall issue an order setting forth such findings.”

NRS 3.2203 is silent as to what standard of proof applies to a request for SIJ predicate findings, but the Supreme Court of Nevada has recognized that the preponderance-of-the-evidence standard, which is the minimum civil standard of proof, is generally applicable in civil cases. Because NRS 3.2203 does not set forth an applicable standard of proof, there is no clear legislative intent for district courts to apply anything other than the preponderance-of-the-evidence standard when determining whether SIJ predicate findings are warranted. Thus, the Court of Appeals held that an individual requesting predicate factual findings under NRS 3.2203 need only demonstrate that such findings are warranted by a preponderance of the evidence. And this standard of proof controls as to the SIJ predicate findings regardless of the type of proceeding in which the findings are sought. The Court of Appeals emphasized that NRS 3.2203 applies in a variety of different proceedings, and in some of those proceedings standards of proof other than the preponderance of the evidence generally apply. For example, petitioners in guardianship proceedings like those at issue here must demonstrate that the guardianship itself is necessary by clear and convincing evidence. However, nothing in the guardianship statutes, nor in any of the other statutory schemes in which NRS 3.2203 applies, indicates that a heightened standard of proof would ever apply to a request for SIJ predicate findings. Separately, the Court of Appeals found that a parent’s allowing his or her child to be subjected to conduct (e.g., by failing to intervene) that is terrorizing or emotionally traumatic and threatens the health or welfare of the child may amount to abuse or neglect under NRS 3.2203(8)(b). Further, when determining whether reunification with a parent is viable, a district court should consider “the entire history of the relationship between the minor and the parent in the foreign country.” This entails “assess[ing] the impact of the history of the parent’s past conduct on the viability, i.e., the workability or practicability of a forced reunification of parent with minor, if the minor were to be returned to the home country.” District courts should consider the following nonexhaustive list of factors when making such a determination:

(1) the lifelong history of the child’s relationship with the parent (i.e., is there credible evidence of past mistreatment);

(2) the effects that forced reunification might have on the child (i.e., would it impact the child’s health, education, or welfare); and

(3) the realistic facts on the ground in the child’s home country (i.e., would the child be exposed to danger or harm).

In re: Guardianship of B.A.A.R. , 136 Nev. Adv. Op. No. 57, ___ P.3d ___ (September 3, 2020).
https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Resources

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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