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-