Advance Opinion Summary (3-1-14)
By Joe Tommasino
The NV Supreme Court Summaries are provided by attorney Joe Tommasino and published by the Clark County Bar Association (CCBA). All rights reserved. To request permissions to reprint, contact CCBA at (702) 387-6011.
Architects: Regardless of whether a foreign firm employs a registered architect, NRS 623.349(2) and NRS 623.357 mandate that the firm be registered in Nevada in order to maintain an action on the firm’s behalf. In this case, DTJ Design, Inc. (DJT) was required to plead and prove that it was properly registered pursuant to NRS Chapter 623 as part of its prima facie case seeking compensation for its architectural services. DTJ Design v. First Republic Bank, 130 Nev. Adv. Op. No. 5, ___ P.3d ___ (February 13, 2014).
Construction Defects: (1) When a district court issues sanctions against multiple offerees pursuant to NRS 17.115 and NRCP 68, it has and must exercise its discretion to determine whether to apportion those sanctions among the multiple offerees or to impose those sanctions with joint and several liability; and (2) when sanctions are issued against multiple homeowner offerees pursuant to NRS 17.115 and NRCP 68 in a construction-defect action, a district court abuses its discretion by imposing those sanctions jointly and severally against the homeowners. By requiring the apportionment of sanctions under NRS 17.115 and NRCP 68 in this context, the Supreme Court of Nevada seeks to ensure that group homeowner construction-defect actions will not be chilled by threats of crippling joint and several sanctions. Separately, the Court clarified that when a district court sustains an objection to attorney misconduct, but fails to admonish counsel or the jury, if objecting counsel does not promptly request the omitted admonishments, he or she must, in seeking a new trial based on the improper conduct, demonstrate that the misconduct was so extreme that the objection and sustainment could not have removed the misconduct’s effect. If the district court fails to admonish counsel or the jury after objecting counsel requests such admonishment promptly following his or her sustained objection, a party moving for a new trial must only demonstrate that an admonition to the jury would likely have affected the verdict in favor of the moving party. Gunderson v. D.R. Horton, Inc., 130 Nev. Adv. Op. No. 9, ___ P.3d. ___ (February 27, 2014).
DUI: The requirement of NRS 50.315(6)—that a defendant must establish a substantial and bona fide dispute regarding the facts in a declaration made and offered as evidence pursuant to NRS 50.315(4)—impermissibly burdens the right to confrontation. The relative simplicity of collecting blood and the foundational purpose for which the declaration was offered do not affect this conclusion. In Nevada, the declaration of a person who collects a defendant’s blood for evidentiary testing may be admitted at trial. NRS 50.315(4). A defendant in a misdemeanor driving under the influence trial waives the right to confront the maker of such a declaration unless the defendant can show a substantial and bona fide dispute regarding the facts in the declaration. NRS 50.315(6). The Supreme Court of Nevada concluded that, in light of the Supreme Court of the United States’s decision in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), the statute’s substantial-and-bona-fide-dispute requirement impermissibly burdens the right to confront the declarant. City of Reno v. Howard, 130 Nev. Adv. Op. No. 12, ___ P.3d ___ (February 27, 2014).
Evidence: A witness’s review of purportedly privileged documents prior to testifying constitutes a waiver of any privilege under NRS 50.125, such that the adverse party may demand production, be allowed to inspect the documents, cross-examine the witness on the contents, and admit the evidence for purposes of impeachment. However, under the facts of this case, where the adverse party failed to demand production, inspection, cross-examination, and admission of the documents at or near the hearing in question and instead waited until well after the district court had entered its order, the demand was untimely. Las Vegas Sands v. Eighth Jud. Dist. Ct., 130 Nev. Adv. Op. No. 13, ___ P.3d ___ (February 27, 2014).
Felony-Murder: Under NRS 200.030(1)(b), first-degree felony murder occurs when a murder is “[c]ommitted in the perpetration or attempted perpetration of” certain felonies, including burglary. Because the statute holds felons strictly responsible for killings that result from their felonious actions, the judgment of conviction can be affirmed in this case, even though the killing occurred after the offense of burglary was complete. Under NRS 200.030(1)(b), the perpetration of a felony does not end the moment all of the statutory elements of the felony are complete. Instead, the duration of felony-murder liability can extend beyond the termination of the felony itself if the killing and the felony are part of one continuous transaction. Sanchez-Dominguez v. State, 130 Nev. Adv. Op. No. 10, ___ P.3d ___ (February 27, 2014).
Judicial Discipline: The investigatory stage of judicial-discipline proceedings provides fewer due process protections than the adjudicatory stage. Due-process rights generally do not attach during the investigatory phase of judicial-discipline proceedings, as this will allow the investigation to proceed unimpeded until the Nevada Commission on Judicial Discipline has determined whether formal charges should be brought. Absent due-process concerns, relief from procedural violations occurring during the investigatory stage may be obtained only by showing actual prejudice. Jones v. Nev. Comm’n on Jud. Discipline, 130 Nev. Adv. Op. No. 11, ___ P.3d ___ (February 27, 2014).
Jurors: A prospective juror who is anything less than unequivocal about his or her impartiality should be excused for cause. A prospective juror should be removed for cause only if the prospective juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. If the jury actually seated is impartial, the fact that a defendant had to use a peremptory challenge to achieve that result does not mean that the defendant was denied his right to an impartial jury. Separately, the Court noted that “[i]n [Daniel v. State, 119 Nev. 498, 507-08, 78 P.3d 890, 897 (2003)], we determined that SCR 250(5)(a) and due process require a district court to record all sidebar proceedings in a capital case either contemporaneously with the matter’s resolution, or the sidebar’s contents must be placed on the record at the next break in trial.” In the instant case, the Court concluded that “[d]ue process requires us to extend our reasoning in Daniel to defendants in noncapital cases, because regardless of the type of case, it is crucial for a district court to memorialize all bench conferences, either contemporaneously or by allowing the attorneys to make a record afterward.” Preciado v. State, 130 Nev. Adv. Op. No. 6, ___ P.3d ___ (February 13, 2014).
Jury Trials: First-offense domestic battery is a “petty” offense to which the right to a jury trial does not attach. The Supreme Court of Nevada rejected the defendant’s argument that various consequences of a conviction for domestic battery reflect a legislative determination that the offense is serious: (1) NRS 432B.157 and NRS 125C.230 create a rebuttable presumption that he, as a perpetrator of domestic violence, is unfit for sole or joint custody of his children; (2) he could lose the right to possess a firearm under 18 U.S.C. § 922(g)(9); and (3) a conviction would render a noncitizen deportable under federal immigration law. Amezcua v. Eighth Jud. Dist. Ct., 130 Nev. Adv. Op. No. 7, ___ P.3d ___ (February 13, 2014).
Term Limits: (1) Article 15, Section 3(2) of the Nevada Constitution prohibits an individual from being “elected to any state office or local governing body [if he or she] has served in that office, or at the expiration of his [or her] current term [he or she] will have served, 12 years or more”; (2) because the Reno City Charter makes the mayor a member of the city’s “local governing body” for all purposes, Article 15, Section 3(2) bars a term-limited council member from thereafter being elected mayor of Reno. In this opinion, the Supreme Court of Nevada examined the provisions of the Reno City Charter and concluded that the Reno mayor is a member of the “local governing body,” subject to the same limitations that apply to the other city-council members. Lorton v. Jones, 130 Nev. Adv. Op. No. 8, ___ P.3d ___ (February 20, 2014).
Workers’ Compensation: NRS 233B.130(2)(b) provides that a petition for judicial review of an agency determination must be filed in Carson City, the aggrieved party’s county of residence, or the county where the agency proceeding occurred; NRS 233B.130(2)(b) is a mandatory jurisdictional requirement. In this case, the Second Judicial District Court lacked jurisdiction to consider the petition for judicial review and should have dismissed it rather than transfer venue. Because NRS 233B.130(2)(c) provides that the petition must be brought within 30 days and that time period has passed, the petition cannot be amended or refiled to correct the deficiency. Liberty Mut. v. Thomasson, 130 Nev. Adv. Op. No. 4, ___ P.3d ___ (February 6, 2014).
Details for each opinion can now be found on the “Advance Opinions” page published by the Supreme Court of Nevada at http://supreme.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).