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).