Nevada Appellate Court Summaries (9-5-23)

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

Child support: While NRS 125C.0045(1)(a) generally requires that modifications to child support be made while the child is still a minor, NRS 125B.110 creates a statutory exception for adult handicapped children in certain circumstances. Separately, the Supreme Court of Nevada clarified that while a 20-percent change in monthly income may constitute a change in circumstances under NRS 125.150(8), it does not compel the district court to make a modification. Rather, it merely permits the court to determine, in its discretion, whether modifying alimony is appropriate. Davitian-Kostanian v. Kostanian, 139 Nev. Adv. Op. No. 27, ___ P.3d ___ (August 31, 2023). https://nvcourts.gov/supreme/decisions/advance_opinions

Civil contempt: A district court may properly hold a party in civil contempt for failure to fulfill a statutory and constitutional obligation to accept incompetent criminal defendants for restorative treatment. This matter arose from district court orders holding Petitioner Nevada Division of Public and Behavioral Health (DPBH) in contempt for violating competency-court orders. In this opinion, the Supreme Court of Nevada distinguished between direct and indirect contempt. Direct contempt “may be punished summarily” and may take the form of a person disrupting a court proceeding. In direct contempt, the events occurred “in the immediate view and presence of the court,” so the court requires no additional information to enter a sanction. Indirect contempt is contempt where the court must receive additional information to determine whether a sanction is appropriate and what that sanction should be. Here, the district court had jurisdiction to hold DPBH in contempt and did not manifestly or capriciously abuse its discretion in doing so. State, Dep’t of Health v. Dist. Ct., 139 Nev. Adv. Op. No. 28, ___ P.3d ___ (August 31, 2023). https://nvcourts.gov/supreme/decisions/advance_opinions

Judicial disqualification: When Supreme Court justices are disqualified from participating in a case, the Nevada Constitution authorizes both the governor’s designation of lower-court judges and the chief justice’s temporary assignment of senior justices to take the places of the disqualified justices. This case involves two provisions of article 6 of the Nevada Constitution: section 4(2) and section 19(1). Section 4(2) addresses the governor’s designation of district and court of appeals judges to sit in the places of disqualified or disabled Supreme Court justices. Nothing in section 4(2) gives the governor the sole power to select substitutes for disqualified justices, and to the extent that section can be read otherwise, the provisions must be harmonized. Section 19(1) recognizes the chief justice as the administrative head of the court system and provides for the recall and temporary assignment of senior justices. Section 19(1) provides the chief justice broad power to assign judges and justices laterally but, per SCR 243, does not give the chief justice power to elevate district and court of appeals judges to act in Supreme Court cases. The Constitution thus authorizes both the governor to designate lower-court judges for temporary assignment in the Supreme Court in cases of disqualification and the chief justice to assign senior justices to the Supreme Court for temporary assignment in cases of disqualification. The powers are complementary. Valley Health Sys., LLC v. Murray, 139 Nev. Adv. Op. No. 22, ___ P.3d ___ (August 17, 2023). https://nvcourts.gov/supreme/decisions/advance_opinions

Lewdness: One of the lewdness convictions in this case is redundant to a sexual assault that involved the same episode. NRS 201.230(1) defines lewdness with a child as “any lewd or lascivious act, other than acts constituting the crime of sexual assault . . . .” (emphasis added). This provision makes sexual assault and lewdness with a child alternative or mutually exclusive offenses, “meaning as a matter of statutory interpretation that the same act can yield a conviction for sexual assault or lewdness [with a child] but not both.” Because “[t]he State has the burden to show that the defendant committed a crime,” and because a lewd act must not also constitute sexual assault, “the State has the burden, at trial, to show that the lewdness was not incidental to the sexual assault”–that is, that the lewd and assaultive acts were adequately “separate and distinct” to support convictions for both. To meet that burden, the State must provide sufficient evidence of separateness such that a rational juror could reasonably find two separate crimes. If the State fails in that burden, the lewdness conviction must be reversed as redundant to the sexual assault. Separately charged acts of lewdness with a child and sexual assault can occur “as part of a single criminal encounter,” if the defendant “stopped [the lewd] activity before proceeding” to the assault. The lewd act cannot, however, be a mere “prelude” intended to “arouse” the victim or “predispose” them to the assault. If the State charges both sexual assault and lewdness with a child and fails to provide “any evidence regarding the sequence of events and under what circumstances the lewdness occurred,” a reviewing court must assume, lacking any evidence to the contrary, that the charges are redundant. Here, the State failed to provide sufficient evidence “regarding the sequence of events” involving both lewd and assaultive acts, so the Supreme Court of Nevada reversed the conviction under count XI (lewdness with a child under 14) for kissing the child victim on the mouth. Separately, the Court explained that “[a]n uncharged act may only be admitted as res gestae if it is part of the same ‘transaction’–the same temporal and physical circumstances–as the charged act.” The uncharged act and the crime “must be so interconnected” that it is nearly impossible for the witness to describe the crime without referring to the uncharged act. The Supreme Court has never held, nor does any statute provide, that evidence of grooming is categorically admissible, as res gestae evidence or otherwise. Finally, the Supreme Court addressed the defendant’s argument that the length of his sentence violates the Eighth Amendment’s prohibition against cruel and unusual punishment because it is unreasonably disproportionate to the crime. The Court emphasized that “[w]hile the sentence’s length, the district court’s refusal to follow sentencing recommendations of either party, and the court’s remarks at sentencing are troubling, precedent does not support reversal for resentencing where, as here, the sentence imposed is within statutory limits and not unconstitutionally disproportionate.” Alfaro v. State, 139 Nev. Adv. Op. No. 24, ___ P.3d ___ (August 24, 2023). https://nvcourts.gov/supreme/decisions/advance_opinions

Ordinary course covenants: (1) Generally, an ordinary course covenant requires the seller to operate its business in the usual manner between the time the agreement is signed and closing; (2) here, such a covenant was included in the purchase agreement for the sale of a casino and hotel, and when the seller closed the casino and laid off employees due to the pandemic and the Governor’s resulting emergency directive, the buyer asserted breach of the covenant; and (3) the Supreme Court of Nevada found that “[i]n closing the casino and hotel pursuant to the emergency directive, the seller was merely following the law so as to maintain its gaming licenses and thus did not materially breach the agreement.” In reviewing Appellant Lucky Lucy’s actions in response to the COVID-19 pandemic, the Supreme Court concluded that Lucky Lucy conducted the business in a manner that was generally consistent with the manner in which it had done so in the past. Under NRS 463.615(1)-(2), if any gaming company “does not comply with the laws of this state and the regulations of the [Gaming] Commission, the Commission may, in its discretion . . . [r]evoke, limit, condition or suspend the license” of the company or fine the company “in accordance with the laws of this state and the regulations of the [Gaming] Commission.” Under Section 3.14 of the agreement, the parties agreed that if anything in their agreement was in violation or contravention of any gaming laws that such provision shall be null and void. Further, the Governor’s Emergency Directives ordering the temporary closure of casinos carried with them the force of law for the duration of the state of emergency. Because Lucky Lucy previously complied with Nevada laws and maintained its gaming licensing, Respondent LGS Casino LLC failed to meet its burden in establishing Lucky Lucy’s actions in response to the COVID-19 pandemic were not generally consistent with Lucky Lucy’s prior actions. Accordingly, Lucky Lucy did not materially default under the agreement. Lucky Lucy D LLC v. LGS Casino LLC, 139 Nev. Adv. Op. No. 26, ___ P.3d ___ (August 24, 2023). https://nvcourts.gov/supreme/decisions/advance_opinions

Property liens: (1) NRS 106.240 provides that certain liens on real property are automatically cleared from public records after a specified period of time; (2) in particular, NRS 106.240 provides that a lien that is created by a mortgage or deed of trust on real property is conclusively presumed to be discharged “10 years after the debt secured by the mortgage or deed of trust according to the terms thereof or any recorded written extension thereof become wholly due”; and (3) a loan secured by real property does not become “wholly due” for purposes of NRS 106.240 when a Notice of Default is recorded as to the secured loan. The secured debt here did not become wholly due when the Notice of Default was recorded in 2008 for the following reasons: (1) A Notice of Default is not identified in NRS 106.240 as a document that can render a secured loan “wholly due” for purposes of triggering the statute’s 10-year time frame; (2) Nevada law requires a cure period following a Notice of Default before acceleration of the entire outstanding debt; and (3) acceleration can only occur if its exercise is clear and unequivocal, and the Notice of Default’s purported acceleration language was not sufficiently clear and unequivocal here. Therefore, the applicable lien has not been discharged by operation of law, and the deed of trust continues to encumber the subject property. LV Debt Collect v. Bank of N.Y. Mellon, 139 Nev. Adv. Op. No. 25, ___ P.3d ___ (August 24, 2023). https://nvcourts.gov/supreme/decisions/advance_opinions

Nevada Court of Appeals

Return of property: (1) After the Las Vegas Metropolitan Police Department (LVMPD) executed search warrants at Appellants’ business establishments, seizing various documents and electronic devices, Appellants filed a motion for the return of that property pursuant to NRS 179.085 on the basis that the property contained privileged materials; (2) although the district court properly denied appellants’ request to quash and unseal the warrants, the district court erred when it prematurely denied appellants’ return-of-property motion without giving appellants an opportunity to demonstrate privilege; and (3) the district court also erred by adopting LVMPD’s proposed search protocol, which allowed its Digital Forensics Lab (DFL) to disclose potentially confidential communications to law enforcement based on its own unilateral determination of privilege without affording appellants an opportunity to challenge that determination prior to disclosure. The Court of Appeals recognized for the first time that Nevada’s return-of-property statute, NRS 179.085, allows a property owner to seek the return of privileged materials that have been seized pursuant to a valid search warrant, even when the government has an ongoing investigation. When a property owner files a return-of-property motion prior to the initiation of criminal proceedings, the Nevada Rules of Civil Procedure apply. In such cases, the property owner must comply with NRCP 26(b)(5), which requires both an express claim of privilege and a description of the privileged documents in a privilege log. However, the property owner need not produce a privilege log until the owner has been given access to the seized materials. In re Search Warrants re Seizure of Docs., 139 Nev. Adv. Op. No. 23, ___ P.3d ___ (August 24, 2023). https://nvcourts.gov/supreme/decisions/advance_opinions


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).

Discover more from Clark County Bar Association

Subscribe now to keep reading and get access to the full archive.

Continue reading

Verified by MonsterInsights