NV Supreme Court Summaries (11-28-12)

The NSC 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.

Arbitration: The lower court erred by summarily adjudicating a motion to confirm an arbitration award, without giving the opposing party the opportunity to file an opposition to the motion or to file a motion to vacate, modify, or correct, while the opposing party was still within the statutory 90-day period to do so.  Nevada has adopted the Uniform Arbitration Act of 2000, codified in NRS 38.206 to 38.248 (UAA).  The UAA provides for judicial review and enforcement of arbitration awards.  It provides that the winning party can move the district court for an order confirming the award, and it gives the losing party 90 days from the date of notice of an adverse arbitration award to move the district court to vacate, modify, or correct the award.   Here, the district court summarily granted the motion of respondent Wells Fargo Bank, N.A., to confirm its arbitration award against appellant Inger Casey.  It did so without giving Casey the opportunity to be heard in opposition to the motion to confirm, even though the 90-day period for Casey to move to vacate, modify, or correct the award had yet to run.  Casey v. Wells Fargo Bank, N.A., 128 Nev. Adv. Op. No. 64, ___ P.3d ___ (December 13, 2012).

http://www.nevadajudiciary.us/index.php/advancedopinions/1751-casey-v-wells-fargo-bank-na-

Civil Procedure:  In situations where a party is facing a civil proceeding and a simultaneous criminal investigation, the district court has the power to stay the civil proceeding in the interest of fairness.  However, it is constitutionally permissible for both matters to proceed concurrently.  A stay of  civil discovery pending the outcome of a related criminal matter should not be granted lightly because it is an extraordinary remedy appropriate for extraordinary circumstances.  A movant must carry a heavy burden in order to demonstrate that a stay is warranted.  Determining whether to grant such a stay is a fact-intensive, case-by-case determination that requires delicate balancing of competing interests.  Courts should analyze the extent to which the defendant's Fifth-Amendment rights are implicated, as well as the following nonexhaustive factors:

            (1) The interest of the plaintiffs in proceeding expeditiously with the litigation or any particular aspect of it, and the potential prejudice to plaintiffs of a delay;

            (2) The burden which any particular aspect of the proceedings may impose on defendants;

            (3) The convenience of the court in the management of its cases, and the efficient use of judicial resources;

            (4) The interests of persons not parties to the civil litigation; and

            (5) The interest of the public in the pending civil and criminal litigation.

Aspen Financial Services v. Dist. Ct., 128 Nev. Adv. Op. No. 57, ___ P.3d ___ (December 6, 2012).

http://www.nevadajudiciary.us/index.php/advancedopinions/1736-aspen-financial-services-v-dist-ct

Civil Procedure:  Although Nevada's judgment execution statutes permit a judgment creditor to execute on a debtor's personal property, including the right to bring an action to recover a debt, money, or thing, those statutes do not include the right to execute on a party's defenses to an action.  Permitting a judgment creditor to execute on a judgment in such a way would cut off a debtor's defenses in a manner inconsistent with due process principles.  Butwinick v. Hepner, 128 Nev. Adv. Op. No. 65, ___ P.3d ___ (December 27, 2012).

http://www.nevadajudiciary.us/index.php/advancedopinions/1761-butwinick-v-hepner-

Construction Defects:  While purely representative actions brought by homeowners' associations are not necessarily precluded by failure to meet NRCP 23's class action prerequisites, the district court is required, if requested by the parties, to thoroughly analyze and document its findings to support alternatives to class action for the case to proceed, such as joinder, consolidation, or some other manner.

"[T]he district court must determine, among other issues, which units represented by the association have constructional defects, that the alternative method to proceed will adequately identify factual and legal similarities between claims and defenses, provide notice to members represented by the association, and confront how claim preclusion issues will be addressed."  Beazer Homes Holding Corp. v. Dist. Ct., 128 Nev. Adv. Op. No. 66, ___ P.3d ___ (December 27, 2012).

http://www.nevadajudiciary.us/index.php/advancedopinions/1762-beazer-homes-holding-corp-v-dist-ct-

Counties:  Under NRS 439.365, a county with a population over 700,000 must fund the health district at the amount requested, so long as that amount does not exceed NRS 439.365(2)'s statutory cap.  NRS 439.365 was designed to provide health districts with a dedicated funding source that would not be subject to the unabated discretion of the county.  Clark County v. S. Nevada Health Dist., 128 Nev. Adv. Op. No. 58, ___ P.3d ___ (December 6, 2012).

http://www.nevadajudiciary.us/index.php/advancedopinions/1737-clark-county-v-s-nevada-health-dist-

Criminal Procedure: NRS 178.572 and NRS 178.574 confer broad transactional immunity for compelled testimony. The statutes immunize defendants from further criminal action when compelled testimony is given pursuant to a grant of immunity under these statutes.  When this immunity is granted to a defendant who has already pleaded guilty to, but has not yet been sentenced for, offenses implicated by the compelled testimony, the immunity bars the defendant's punishment in the pending criminal prosecution.  NRS 178.572 and NRS 178.574 allow the State to compel witness testimony while still affording the witness the protections underlying the Fifth Amendment right against self-incrimination.  State v. Tricas, 128 Nev. Adv. Op. No. 62, ___ P.3d ___ (December 13, 2012).

http://www.nevadajudiciary.us/index.php/advancedopinions/1749-state-v-tricas-

Dependency: When reviewing an objection to a dependency master's findings of fact and recommendation in an abuse and neglect proceeding, the juvenile court may adopt the master's findings of fact unless they are clearly erroneous.  However, a master's findings and recommendations are only

advisory, and the juvenile court is not obligated to adopt them. The juvenile court ultimately must exercise its own independent judgment when deciding how to resolve a case.  In re: A.B., 128 Nev. Adv. Op. No. 70, ___ P.3d ___ (December 27, 2012).

http://www.nevadajudiciary.us/index.php/advancedopinions/1766-in-re-ab-

Divorce:  An oral settlement agreement is enforceable if it is put on the record and approved in open court, even if that agreement is otherwise subject to the writing requirement of a statute of frauds.   This appeal challenges a final divorce decree based on a written but unsigned property settlement agreement.  The district court incorporated the agreement into its decree based on the parties' testimony, in open court, that they stipulated to its terms. The district court admitted the draft as a hearing exhibit and approved the oral stipulation by minute order. This procedure complied with applicable district court rules, which obviates any issue as to the statute of frauds, and the draft otherwise met the requirements for an enforceable contract.  Grisham v. Grisham, 128 Nev. Adv. Op. No. 60, ___ P.3d ___ (December 6, 2012).

http://www.nevadajudiciary.us/index.php/advancedopinions/1739-grisham-v-grisham

Divorce:  The instant case must be remanded because the lower court did not conduct an evidentiary hearing on the spousal-support request, and the lower court did not expressly analyze the factors for determining spousal support set forth in Sprenger v. Sprenger, 110 Nev. 855, 878 P.2d 284 (1994), and NRS 125.150(8).  When considering whether to award spousal support, the district court should consider, among other things, the parties' careers before marriage, the parties' educations during marriage, the parties' marketability, the length of the marriage, and what the parties were awarded in the divorce proceedings besides spousal support.  DeVries v. Gallio, 128 Nev. Adv. Op. No. 63, ___ P.3d ___ (December 13, 2012).

http://www.nevadajudiciary.us/index.php/advancedopinions/1750-devries-v-gallio

Double Jeopardy:  Nevada cases and their "redundancy" progeny are disapproved to the extent that they endorse a fact-based "same conduct" test for determining the permissibility of cumulative punishment. Rather than the facts or evidence in a specific case, the proper focus is on legislative authorization, beginning with an analysis of the statutory text.  If the Legislature has authorized—or interdicted—cumulative punishment, that legislative directive controls.  Absent express legislative direction, the test to be employed is based upon Blockburger v. United States, 284 U.S. 299 (1932).  Blockburger licenses multiple punishment unless, analyzed in terms of their elements, one charged offense is the same or a lesser-included offense of the other.  Here, the Court concluded that the defendants' multiple convictions and punishments for attempted murder, assault, and battery are statutorily authorized.  Jackson v. State, 128 Nev. Adv. Op. No. 55, ___ P.3d ___ (December 6, 2012).

http://www.nevadajudiciary.us/index.php/advancedopinions/1734-jackson-v-state-

Foreclosure Mediation:  All documents needed to determine entitlement to enforce the note and to foreclose were authenticated and present in the instant case.  To make the outcome turn on who brought the documents, the authenticity of which was adequately established under conventional rules of evidence, exalts literalism for no practical purpose.  The document-production requirement originates in NRS 107.086(4), which states: "The beneficiary of the deed of trust shall bring to the mediation the original or a certified copy of the deed of trust, the mortgage note and each assignment of the deed of trust or mortgage note."  Having these documents available at the mediation allows the mediator and the homeowner to satisfy themselves that whoever is foreclosing actually owns the note and has authority to modify the loan.

Einhorn v. BAC Homes Loans Servicing, 128 Nev. Adv. Op. No. 61, ___ P.3d ___ (December 6, 2012).

http://www.nevadajudiciary.us/index.php/advancedopinions/1740-einhorn-v-bac-homes-loans-servicing

Indemnity:  A plain reading of the contractual indemnity language in this case imposes a causal limitation on the duty to indemnify and defend.  In these appeals, the Nevada Supreme Court considered what effect specific contract language had on an indemnitor's duty to indemnify and defend an indemnitee in a personal injury action, where that language provided that indemnification will occur "to the extent" that any injury or damage is "caused" by the indemnitor.  United Rentals Hwy. Techs. v. Wells Cargo, 128 Nev. Adv. Op. No. 59, ___ P.3d ___ (December 6, 2012).

http://www.nevadajudiciary.us/index.php/advancedopinions/1738-united-rentals-hwy-techs-v-wells-cargo-

Jurors: When a defendant asserts a violation under Batson v. Kentucky, 476 U.S. 79 (1986), it is a structural error to dismiss the challenged juror prior to conducting the Batson hearing because it shows that the district court predetermined the challenge before actually hearing it.  In the instant case, the district court dismissed prospective juror no. 173 prior to holding the hearing to determine whether the State had legitimate race-neutral reasons for its challenges.  The defendants were not afforded an adequate opportunity to respond to the State's proffer of race-neutral reasons or to show pretext because the district court permanently excused prospective juror no. 173 before holding a Batson hearing.  Dismissing this prospective juror prior to holding the Batson hearing had the same effect as a racially discriminatory peremptory challenge because even if the defendants were able to prove purposeful discrimination, they would be left with limited recourse.  This discriminatory jury selection constitutes structural error that was intrinsically harmful to the framework of the trial.  Brass v. State, 128 Nev. Adv. Op. No. 68, ___ P.3d ___ (December 27, 2012).

http://www.nevadajudiciary.us/index.php/advancedopinions/1764-brass-v-state-

Preemption: The Carmack Amendment to the Interstate Commerce Act does not preempt a claim for "true conversion."  The Carmack Amendment to the Interstate Commerce Act was enacted in 1906 to establish a uniform national liability policy for interstate carriers, and it limits carrier liability to "the actual loss or injury" to goods that occurs during interstate transit. 49 U.S.C. § 14706(a)(1) (2006); New York, N.H. & H.R. Co. v. Nothnagle, 346 U.S. 128, 131 (1953). Accordingly, under the Carmack Amendment, certain compensatory damages and punitive damages are not available.  Carmack Amendment preemption applies equally to fraud and conversion claims arising from a carrier's misrepresentations as to the conditions of delivery or failure to carry out delivery.  However, when there has been a true conversion, i.e., where the carrier has appropriated the property for its own use or gain, it would be against public policy to permit the carrier to limit its liability and thus to profit from its own misconduct.  Dynamic Transit v. Trans Pac. Ventures, 128 Nev. Adv. Op. No. 69, ___ P.3d ___ (December 27, 2012).

http://www.nevadajudiciary.us/index.php/advancedopinions/1765-dynamic-transit-v-trans-pac-ventures-

Public Records:  Documents filed in the Nevada Supreme Court are presumptively open to the public unless the Court exercises its inherent authority and grants a motion to file specific documents under seal, based on a showing that such action is required by law or an identified significant competing interest.  Consistent with the Court's overarching concern in safeguarding openness and transparency in the criminal judicial process, the Court imposed the following requirements for sealing records and documents in pending  criminal cases.  First, a party seeking to seal a document must file a written motion and serve the motion on all parties involved in the action.  Second, the motion must identify the document or information the party seeks to seal.  Third, the motion must identify the grounds upon which sealing the subject documents is justified and specify the duration of the sealing order.  Although not an exhaustive list, examples of court records in criminal proceedings that may be sealed in the Nevada Supreme Court include records containing privileged attorney-client communications where the privilege has not been waived, records containing information that is permitted or required under federal or Nevada law to be sealed, and records containing information the sealing of which is justified or required by an identified significant competing interest.  Fourth, the motion must explain why less restrictive means will not adequately protect the material. The records or documents that are the subject of the motion may be submitted separately and will remain confidential for a reasonable period of time pending the Court's resolution of the motion.  The Court noted that "[a]lthough we can appreciate the desire to avoid unnecessary embarrassment that alone is insufficient to warrant sealing court records from public inspection."  Howard v. State, 128 Nev. Adv. Op. No. 67, ___ P.3d ___ (December 27, 2012).

http://www.nevadajudiciary.us/index.php/advancedopinions/1763-howard-v-state-

Torts:  When a plaintiffs or decedent's mesothelioma is alleged to have been caused by exposure to a defendant's asbestos-containing products, a balanced approach is needed in order to find a causation test that is not  overly rigorous or too relaxed in order to ensure protection for both manufacturers and consumers.  Ultimately, the Nevada Supreme Court agreed with the majority view and adopted the test set forth in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986), as that test is explained in Gregg v. V-J Auto Parts, Inc., 943 A.2d 216, 225 (Pa. 2007), for mesothelioma cases. Under the Lohrmann test, the plaintiff is required to prove exposure to the defendant's product "on a regular basis over some extended period of time" and "in proximity to where the plaintiff actually worked," such that it is probable, or reasonable to infer, that the exposure caused the mesothelioma.  Holcomb v. Georgia Pacific, 128 Nev. Adv. Op. No. 56, ___ P.3d ___ (December 6, 2012).

http://www.nevadajudiciary.us/index.php/advancedopinions/1735-holcomb-v-georgia-pacific

Torts: Landowners are not free from the duty to exercise reasonable care solely because the danger posed was open and obvious.  The Court adopted the approach taken by section 51 of the Restatement (Third) of Torts: Physical and Emotional Harm.  A landowner owes a duty of reasonable care to entrants for risks that exist on the property.  The fact that a dangerous condition is open and obvious does not automatically shield a landowner from liability but rather bears on whether the landowner exercised reasonable care with respect to that condition and issues of comparative fault.  Foster v. Costco Wholesale Corporation, 128 Nev. Adv. Op. No. 71, ___ P.3d ___ (December 27, 2012).

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).

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).

NV Supreme Court Summaries (10-25-12)

The NSC 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.

Constitutional Law: NRS 293.805's prohibition against providing compensation to voter registration canvassers based upon the total number of voters a canvasser registers does not violate the First Amendment to the United States Constitution. The restrictions in NRS 293.805 place a minimal burden on First Amendment rights. The statute only prohibits payment of those who register voters based upon the number of voters one registers and the number of voters one registers for a particular political party. Nevada's interest in protecting the integrity of its election process and preventing voter-registration fraud, when viewed in relation to this minimal burden, is sufficiently weighty to justify NRS 293.805's restrictions. Further, NRS 293.805 is not unconstitutionally vague. Busefink v. State, 128 Nev. Adv. Op. No. 49, ___ P.3d ___ (October 4, 2012).
http://www.nevadajudiciary.us/index.php/advancedopinions/1666-busefink-v-state

Coroner’s Inquests: (1) The Clark County, Nevada, Code of Ordinances provisions establishing and setting forth inquest procedures for officer-involved deaths do not implicate due-process rights; (2) to the extent that the code provisions pertaining to inquest proceedings regarding officer-involved deaths require that the presiding officer be a justice of the peace, these provisions unconstitutionally intrude upon the Legislature's exclusive constitutional authority to determine the jurisdiction of justices of the peace. With respect to the first issue, the Court found that the inquest process constitutes an investigatory, rather than an adjudicatory, proceeding. As a result, due-process protections are not triggered. With respect to the second issue, “the Nevada Constitution expressly provides that only the Legislature has the authority to determine, by law, the jurisdictional limits of the justices of the peace,” and the Clark County Board of County Commissioners unconstitutionally impinged on the Legislature's constitutionally delegated authority. Because, in the case of officer-involved deaths, the code makes no provision for anyone except a justice of the peace to serve as presiding officer, the offending provision cannot be severed. Therefore, the Court declared that the entire inquest scheme regarding officer-involved deaths had to be struck down. Hernandez v. Bennett-Haron, 128 Nev. Adv. Op. No. 54, ___ P.3d ___ (October 25, 2012).
http://www.nevadajudiciary.us/index.php/advancedopinions/1692-hernandez-v-bennett-haron-

Criminal Law: A juvenile detained for delinquency in a state facility is NOT a “prisoner” for purposes of NRS 200.481(2)(f), Nevada's felony battery-by-a-prisoner statute. NRS 200.481(2)(f) prohibits battery “by a prisoner who is in lawful custody or confinement.” For NRS 200.481(2)(f) to apply, the alleged batterer must have been “in custody for criminal conduct,” and his confinement must have occurred “in [the] criminal context.” As with civil protective custody, the Legislature has specified that juvenile-justice proceedings are “not criminal in nature.” State v. Javier C., 128 Nev. Adv. Op. No. 50, ___ P.3d ___ (October 4, 2012).
http://www.nevadajudiciary.us/index.php/advancedopinions/1667-state-v-javier-c-


Criminal Law: NRS 212.093(1) does not prohibit county jail inmates from possessing cell phones. RS 212.093(1) prohibits prisoners, including county jail inmates, from possessing “any key, picklock, bolt cutters, wire cutters, saw, digging tool, rope, ladder, hook or any other tool or item adapted, designed or commonly used for the purpose of escaping” from custody. Each item specified in NRS 212.093(1) is ordinarily understood, as it concerns jail settings, to either forcibly manipulate the confines of a jail cell or to physically exit from a jail cell. In stark contrast to the items enumerated in NRS 212.093(1), it would be virtually impossible to use a cell phone to forcibly break out of, or physically flee from, a jail cell. Sheriff v. Andrews, 128 Nev. Adv. Op. No. 51, ___ P.3d ___ (October 4, 2012).
http://www.nevadajudiciary.us/index.php/advancedopinions/1668-sheriff-v-andrews-

Lifetime Supervision: When resolving a petition for release from a special sentence of lifetime supervision under NRS 176.0931(3), the district court has discretion to determine whether a petitioner has met the statutory requirements but lacks discretion to deny a petition for release from lifetime supervision if that court finds the statutory requirements were met. When a person is convicted of a sexual offense, the district court is required to include a special sentence of lifetime supervision as part of the defendant's sentence. This special sentence begins after any period of probation, term of imprisonment, or period of release on parole. The person sentenced to lifetime supervision can petition the district court for release from lifetime supervision, however, if the person satisfies three requirements. First, the petitioner must have complied with Nevada's statutory requirements governing registration of sex offenders. Second, the petitioner must not have “been convicted of an offense that poses a threat to the safety or well-being of others for an interval of at least 10 consecutive years after the person's last conviction or release from incarceration, whichever occurs later.” Third, the petitioner must not be “likely to pose a threat to the safety of others, as determined by a person professionally qualified to conduct psychosexual evaluations, if released from lifetime supervision.” If the petitioner meets the requirements set forth in NRS 176.0931(3), the district court “shall grant [the] petition” for release from lifetime supervision. The use of the word “shall” in the statute divests the district court of judicial discretion. Because the Legislature can define punishments, it is within the Legislature's power to limit punishments also. Therefore, when the Legislature imposes mandatory language limiting the extent of a punishment, the district court must comply with that mandate. The Nevada Supreme Court noted that “[i]n reaching its decision with regard to a petition for release from lifetime supervision, . . . the district court must make factual findings in the record to support its ultimate conclusions with regard to each of the statutory requirements.” Goudge v. State, 128 Nev. Adv. Op. No. 52, ___ P.3d ___ (October 25, 2012).
http://www.nevadajudiciary.us/index.php/advancedopinions/1690-goudge-v-state-

Mechanics’ Liens: (1) Equitable subrogation does not apply against mechanics' lien claimants; (2) subordination agreements purporting to subordinate mechanics' liens prospectively are not enforceable, but mechanic's lien claimants may waive their statutorily protected rights when the precise requirements of NRS 108.2457 are met. Regarding the first issue, the Court indicated that “[t]he Legislature has spoken and has created a specific statutory scheme whereby a mechanic's lien is afforded priority over a subsequent lien, mortgage, or encumbrance in order to safeguard payment for work and materials provided for construction or improvements on land.” Therefore, the plain and unambiguous language of NRS 108.225 precludes application of the doctrine of equitable subrogation, as it unequivocally places mechanic's lien claimants in an unassailable priority position. Regarding the second issue, the Court found that “[t]he legislative history behind the enactments of NRS 108.2453 and NRS 108.2457 illuminates the Legislature's intent that prospective waivers of mechanics' liens are unenforceable.” Thus, to the extent that subordination provisions are prospective, NRS 108.2453 and NRS 108.2457 prohibit the enforcement of those subordination provisions. However, non-prospective subordination agreements may be enforceable, as neither NRS 108.2453 nor NRS 108.2457 completely prohibit waiver of or impairment to the right to a mechanic's lien after it arises. Therefore, non-prospective subordination agreements may be enforced as long as they meet the requirements of NRS 108.2457. In Re: Fontainebleau Las Vegas Holdings, 128 Nev. Adv. Op. No. 53, ___ P.3d ___ (October 25, 2012).
http://www.nevadajudiciary.us/index.php/advancedopinions/1691-in-re-fontainebleau-las-vegas-holdings

NV Supreme Court Summaries (9-28-12)

The NSC 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.

Eminent Domain: Under the plain language of NRS 37.180(1), an eminent domain plaintiff may abandon the proceeding, so long as no more than 30 days have passed since entry of the final judgment. The effect of NRS 37.180(1) is that a public agency in an eminent domain action will know for certain how much it will have to pay in just compensation before finally deciding whether it will take the subject property or abandon the proceeding. In accordance with this statute, the Court further held that a public agency may abandon an eminent domain action after it has paid just compensation and the district court has entered a final order of condemnation, but before the resolution of issues pending on appeal. NRS 37.180(1) requires a district court to act on motion of a party during a specific time period, which includes the time when an appeal of the eminent domain matter is pending before the Nevada Supreme Court. Because a plaintiff is specifically authorized to abandon its eminent domain action while an appeal is pending, the district court must retain a limited jurisdiction during the pendency of the appeal to consider a motion to dismiss filed pursuant to a plaintiff’s notice of abandonment. Furthermore, as an abandonment is likely to render any issues in the appeal moot, it would be illogical to require the plaintiff to wait until the conclusion of the appeal to have the district court adjudicate such a motion. Gold Ridge Partners v. Sierra Pac. Power, 128 Nev. Adv. Op. No. 47, ___ P.3d ___ (September 27, 2012).
http://www.nevadajudiciary.us/index.php/advancedopinions/1659-gold-ridge-partners-v-sierra-pac-power-

Foreclosure Mediation: (1) To participate in the Foreclosure Mediation Program (FMP) and ultimately obtain an FMP certificate to proceed with the nonjudicial foreclosure of an owner-occupied residence, the party seeking to foreclose must demonstrate that it is both the beneficiary of the deed of trust and the current holder of the promissory note. (2) When the Mortgage Electronic Registration System, Inc. (MERS) is the named beneficiary and a different entity holds the promissory note, the note and the deed of trust are split, making nonjudicial foreclosure by either improper. However, any split is cured when the promissory note and deed of trust are reunified.  In this opinion, the Court adopted the approach from the Restatement (Third) of Property, which provides that a promissory note and a deed of trust are automatically transferred together unless the parties agree otherwise. The Court held that MERS is capable of being a valid beneficiary of a deed of trust, separate from its role as an agent (nominee) for the lender. Such separation is not irreparable or fatal to either the promissory note or the deed of trust, but it does prevent enforcement of the deed of trust through foreclosure unless the two documents are ultimately held by the same party.  MERS, as a valid beneficiary, may assign its beneficial interest in the deed of trust to the holder of the note, at which time the documents are reunified. At Footnote 10, the Court commented that “[t]he idea that various rights concerning real property may be severed and freely assigned without destroying such rights is not novel or unique. Indeed, real property is generally described as a bundle of rights. . . . In other contexts of real property, it is commonly accepted that a right may be severed and later reunified.” At Footnote 14, the Court noted that it would not address “what occurs when the promissory note and the deed of trust remain split at the time of the foreclosure.”
Edelstein v. Bank of New York Mellon, 128 Nev. Adv. Op. No. 48, ___ P.3d ___ (September 27, 2012).
http://www.nevadajudiciary.us/index.php/advancedopinions/1660-edelstein-v-bank-of-new-york-mellon-

Preemption: State regulation of natural gas sales is not permissible. In this case, appellants alleged that respondents, in violation of Nevada antitrust laws, conspired with the now-defunct Enron Corporation to drive up the price of natural gas in the Southern Nevada and Southeastern California markets. Appellants asserted that respondents engaged in rapid bursts of purchasing natural gas followed by rapid bursts of selling the same gas, which resulted in considerable profits for respondents and significantly higher prices for natural gas consumers. Appellants further alleged that respondents' plan for manipulating the markets worked because of a secret agreement with Enron that left respondents with greater profits from the sale of gas as well as ensured that respondents would always have a sufficient supply of natural gas. The district court correctly dismissed the case, holding that the claims were barred by principles of federal preemption. The Nevada Supreme Court declared that allowing intervention by the states would devastate “two of the additional purposes of the federal statutory scheme: national uniformity and freedom from burdensome government intervention.” From a practical standpoint, if each state intervened in this field with different regulations, “the result would be a maelstrom of competing regulations that would hinder [the Federal Energy Regulatory Commission’s] oversight of the natural gas market.” State antitrust law cannot coexist peacefully with the natural gas federal regulations. Accordingly, even if Nevada’s Unfair Trade Practices Act is complementary to the federal regulatory scheme, it nonetheless improperly encroaches upon the field. State of Nevada v. Reliant Energy, Inc., 128 Nev. Adv. Op. No. 46, ___ P.3d ___ (September 27, 2012).
http://www.nevadajudiciary.us/index.php/advancedopinions/1658-state-of-nevada-v-reliant-energy-inc-

Termination of Parental Rights: After it is determined that a presumption under NRS 128.109 applies, a parent can rebut that presumption by a preponderance of the evidence. This rule is consistent with civil matters wherein other presumptions can be rebutted by a preponderance of the evidence. Separately, the Court explained that the term “J” file is used to refer to all of the documents filed with the juvenile division of the district court in an underlying NRS Chapter 432B proceeding, including the case plan and the Department of Family Service's semiannual reports indicating the parents' and children's progress under the case plan. The Court found that a litigant waived his hearsay arguments regarding the “J” file by failing to lodge objections at trial to the specific portions of the “J” file that he believed contained hearsay. In re Parental Rights as to J.D.N., 128 Nev. Adv. Op. No. 44, ___ P.3d ___ (August 30, 2012).
http://www.nevadajudiciary.us/index.php/advancedopinions/1637-in-re-parental-rights-as-to-jdn-
 
Workers’ Compensation: NRS 616B.227 requires an average monthly wage calculation to include untaxed tip income when an injured employee reported the tip income to his or her employer. Whether an employee actually paid taxes on the tip income is irrelevant to the average monthly wage calculation, as long as the employee reported the tips to his or her employer. The Court cited case law which stated that “any failure of an employee to pay federal income tax on tips is a matter between the employee, the state, and the federal government and does not prohibit the inclusion of an employee's tips in the average monthly wage calculation for the purpose of determining workers' compensation benefits.” Sierra Nevada Administrators v. Negriev, 128 Nev. Adv. Op. No. 45, ___ P.3d ___ (September 13, 2012).
http://www.nevadajudiciary.us/index.php/advancedopinions/1649-sierra-nevada-administrators-v-negriev-

NV Supreme Court Summaries (8-23-12)

The NSC 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.

ADA: The Americans with Disabilities Act of 1990 (ADA) preempts state law claims for indemnification brought by an admitted violator of the ADA. Permitting indemnification claims would weaken owners’ incentive to prevent violations of the ADA and would conflict with the ADA’s purpose and intended effects. “Simply put, such claims would allow owners to contractually maneuver themselves into a position where, in essence, they can ignore their nondelegable responsibilities under the ADA.” Rolf Jensen & Associates v. Dist. Ct., 128 Nev. Adv. Op. No. 42, ___ P.3d ___ (August 9, 2012).
http://www.nevadajudiciary.us/index.php/advancedopinions/1629-rolf-jensen-a-associates-v-dist-ct

Administrative Procedure: The Nevada Administrative Procedure Act (APA) requires that a petitioner name, as respondents to a petition for judicial review of an administrative decision, “all parties of record.” A party must strictly comply with the APA naming requirement as a prerequisite to invoking the district court’s jurisdiction. Thus, when a petitioner fails to name in its petition each party of record to the underlying administrative proceedings, the petition is jurisdictionally defective and must be dismissed. If the petitioner fails to invoke the district court’s jurisdiction by naming the proper parties within the statutory time limit, the petition may not subsequently be amended to cure the jurisdictional defect. Washoe County v. Otto, 128 Nev. Adv. Op. No. 40, ___ P.3d ___ (August 9, 2012).
http://www.nevadajudiciary.us/index.php/advancedopinions/1627-washoe-county-v-otto-

Attorney Disqualification: An attorney who represents one of his parents in a divorce action between both parents is subject to the following rule: “[a]bsent an ethical breach by the attorney that affects the fairness of the entire litigation or a proven confidential relationship between the nonclient parent and the attorney, the nonclient parent lacks standing to seek disqualification under the concurrent-conflict-of-interest rule in Nevada Rule of Professional Conduct (RPC) 1.7. The Court also stated that “[b]ecause appearance of impropriety is no longer recognized by the American Bar Association, and we have not recognized the appearance of impropriety as a basis for disqualifying counsel except in the limited circumstance of a public lawyer,” disqualification is not warranted “when the alleged impropriety is based solely on a familial relationship with the attorney.” Liapis v. Dist. Ct., 128 Nev. Adv. Op. No. 39, ___ P.3d ___ (August 9, 2012).
http://www.nevadajudiciary.us/index.php/advancedopinions/1626-liapis-v-dist-ct-

Civil Procedure: NRCP 60(b) does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. Resort to an independent action may be had only rarely, and only under unusual and exceptional circumstances. To obtain relief by independent action after a judgment has become final and otherwise unreviewable, a claimant must meet the traditional requirements of an equitable action, which are considerably more exacting than required for relief by motion. Furthermore, “an independent action [is] available only to prevent a grave miscarriage of justice,” which is a “demanding standard.” Bonnell v. Lawrence, 128 Nev. Adv. Op. No. 37, ___ P.3d ___ (August 9, 2012).
http://www.nevadajudiciary.us/index.php/advancedopinions/1624-bonnell-v-lawrence-

Collection Agencies: The State of Nevada Department of Business and Industry, the Financial Institutions Division, and its Commissioner (collectively, the Department) did not have jurisdiction to issue an advisory opinion regarding NRS Chapter 116 and the appropriate amount of homeowners’ association lien fees that can be collected by the respondents in this case. The Department is responsible for regulating the collection practices of collection agencies in Nevada. The statutes pertaining to the regulation and licensing of collection agencies are found in NRS Chapter 649. The Department has the authority to issue advisory opinions “as to the applicability of any [such] statutory provision.” A homeowners’ association (or unit owners’ association), which may act on behalf of a common-interest community, often employs collection agencies to assist with collecting assessments owed by community homeowners. The statutes governing common-interest communities and common-interest ownership are contained in NRS Chapter 116. The Court determined that the Real Estate Division of the Department of Business and Industry and the Commission for Common Interest Communities and Condominium Hotels (CCICCH), and no other commission or division, can interpret NRS Chapter 116. State, Bus. & Indus. v. Nev. Ass’n Servs., 128 Nev. Adv. Op. No. 34, ___ P.3d ___ (August 2, 2012). http://www.nevadajudiciary.us/index.php/advancedopinions/1618-state-bus-a-indus-v-nev-assn-servs

Contracts: When a fraudulent inducement claim contradicts the express terms of the parties’ integrated contract, it fails as a matter of law. Separately, the Court explained that compensatory damages in contract cases “are awarded to make the aggrieved party whole and . . . should place the plaintiff in the position he would have been in had the contract not been breached.” This includes awards for lost profits or expectancy damages. The Court relied upon the Restatement (Second) of Contracts § 347 (1981) to determine those amounts. Road & Highway Builders v. N. Nev. Rebar, 128 Nev. Adv. Op. No. 36, ___ P.3d ___ (August 9, 2012).
http://www.nevadajudiciary.us/index.php/advancedopinions/1623-road-a-highway-builders-v-n-nev-rebar-

District Attorneys: The office of district attorney is not a “state office” under Article 15, Section 3(2) of the Nevada Constitution. Because Article 4, Section 32 of the Constitution declares district attorneys to be “county officers,” district attorneys are not subject to term limits. Article 15, Section 3(2)’s term-limit provision does not apply to judicial officers. In re Contested Election of Mallory, 128 Nev. Adv. Op. No. 41, ___ P.3d ___ (August 9, 2012).
http://www.nevadajudiciary.us/index.php/advancedopinions/1628-in-re-contested-election-of-mallory-

Personal Jurisdiction: Nevada courts can exercise personal jurisdiction over nonresident officers and directors who directly harm a Nevada corporation. Officers or directors who directly harm a Nevada corporation are affirmatively directing conduct toward Nevada. They can be subject to personal jurisdiction even without a director consent statute. Consipio Holding, BV v. Carlberg, 128 Nev. Adv. Op. No. 43, ___ P.3d ___ (August 9, 2012).
http://www.nevadajudiciary.us/index.php/advancedopinions/1630-consipio-holding-bv-v-carlberg

Quantum Meruit: Quantum meruit is a cause of action in both contract and restitution, and separate analyses apply to each. Quantum meruit’s first application is in actions based upon contracts implied-in-fact. A contract implied-in-fact must be “manifested by conduct” and “is a true contract that arises from the tacit agreement of the parties.” To find a contract implied-in-fact, the fact-finder must conclude that the parties intended to contract and promises were exchanged, the general obligations for which must be sufficiently clear. At that point, a party may invoke quantum meruit as a gap-filler to supply the absent term. Where such a contract exists, quantum meruit ensures the laborer receives the reasonable value, usually market price, for his services. Quantum meruit’s second role is in providing restitution for unjust enrichment. “Where unjust enrichment is found, the law implies a quasi-contract which requires the defendant to pay to plaintiff the value of the benefit conferred. In other words, the defendant makes restitution to the plaintiff in quantum meruit.” When a plaintiff seeks “as much as he . . . deserve[s]” based on a theory of restitution (as opposed to implied-in-fact contract), he must establish each element of unjust enrichment. Quantum meruit, then, is “the usual measurement of enrichment in cases where nonreturnable benefits have been furnished at the defendant’s request, but where the parties made no enforceable agreement as to price.” Unjust enrichment exists when the plaintiff confers a benefit on the defendant, the defendant appreciates such benefit, and there is “acceptance and retention by the defendant of such benefit under circumstances such that it would be inequitable for him to retain the benefit without payment of the value thereof.” A pleading of quantum meruit for unjust enrichment does not discharge the plaintiff’s obligation to demonstrate that the defendant received a benefit from services provided. Certified Fire Prot. v. Precision Constr., 128 Nev. Adv. Op. No. 35, ___ P.3d ___ (August 9, 2012).
http://www.nevadajudiciary.us/index.php/advancedopinions/1621-certified-fire-prot-v-precision-constr-

Torts: When a medical facility performs a nonmedical function, general negligence standards apply, and the facility has a duty to exercise reasonable care to avoid foreseeable harm. To prevail on a traditional negligence theory, a plaintiff must establish that (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, (3) the breach was the legal cause of the plaintiff’s injuries, and (4) the plaintiff suffered damages. Here, the Court concluded that a medical facility may have breached its duty to a patient by not acting reasonably in facilitating the power-of-attorney forms while discharging her. The Court commented that “[a]s this opinion addresses the duty of a medical facility to exercise reasonable care and not a specific duty to assist patients with financial planning, we disagree with the district court’s concerns that hospitals will be required to employ financial planners to protect them from actions such as this one.” The Court declined to address “whether a medical facility has an affirmative duty to protect its patients from the harmful acts of third parties.” DeBoer v. Sr. Bridges of Sparks Fam. Hosp., 128 Nev. Adv. Op. No. 38, ___ P.3d ___ (August 9, 2012).
http://www.nevadajudiciary.us/index.php/advancedopinions/1625-deboer-v-sr-bridges-of-sparks-fam-hosp