Past NSC Summaries
NV Supreme Court Summaries (1-3-14)
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.
Civil Procedure: Tolling under NRAP 4(a)(4) applies to an NRCP 59(e) motion to alter or amend directed at an appealable special order after final judgment. NRCP 59(e) allows a party to move the district court to alter or amend a “judgment,” and NRCP 54(a) defines “judgment” to include “any order from which an appeal lies.” The Court concluded that NRAP 4(a)(4) tolling applied to appellants’ NRCP 59(e) motion to alter or amend that was directed at a post-judgment order awarding supplemental attorney fees. The supplemental attorney-fees order was independently appealable as a special order after final judgment, and thus, fell under the definition of “judgment” provided in NRCP 54(a). As a result, the notice of appeal was timely filed. Lytle v. Rosemere Estates Prop. Owners, 129 Nev. Adv. Op. No. 98, ___ P.3d ___ (December 26, 2013).
Homesteads: A debtor must actually reside on real property in order to properly claim a homestead exemption for that property. While the statutory provisions relating to homesteads should be liberally construed, this liberal interpretation “can be applied only where there is a substantial compliance with [the homestead] provisions.” The Nevada Supreme Court determined that under NRS 115.020(2), a homestead declaration must concern the claimant’s “bona fide residence.” The Court also declined the debtor’s invitation to extend Nevada homestead law based on “constructive occupancy.” In re Nilsson, 129 Nev. Adv. Op. No. 101, ___ P.3d ___ (December 26, 2013).
Personal Jurisdiction: (1) A nonresident defendant is not subject to personal jurisdiction in Nevada when the sole basis asserted is an adult child’s unilateral act of driving the defendant’s vehicle in Nevada; (2) because the nonresident defendant’s consolidation motion did not implicate the parties’ substantive legal rights, the filing of it did not amount to a request for affirmative relief sufficient to constitute a waiver of the right to object to the court’s exercise of personal jurisdiction over her; and (3) an interpleader action could subject the nonresident defendant to jurisdiction in Nevada courts if the insurance company was acting as her agent in filing the action. In the instant case, Jane, a California resident, purchased a Scion for her daughter Susan to use as Susan’s primary means of transportation in California. Susan drove the Scion to Nevada for a weekend trip and was involved in an accident. Susan and Jane were subsequently deposed, and each testified that Jane had not prohibited Susan from driving the Scion to Nevada. Regarding the first issue, the Court stated that, unlike “general” jurisdiction, “specific” jurisdiction is proper only where “the cause of action arises from the defendant’s contacts with the forum.” Nevada may exercise specific jurisdiction over a nonresident defendant if the defendant “purposefully avails” herself of the protections of Nevada’s laws, or purposefully directs her conduct towards Nevada, and the plaintiff’s claim actually arises from that purposeful conduct. Thus, “the mere unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State.” Importantly, “[w]hether general or specific, the exercise of personal jurisdiction must also be reasonable.” Jane’s act of buying the Scion and placing no restrictions on Susan’s use of it did not amount to purposeful availment of Nevada’s laws or purposeful conduct toward Nevada. Jane did not specifically authorize Susan to drive the Scion to Nevada. Jane did not loan the vehicle to Susan knowing she would regularly use it in Nevada, and Jane did not purposefully direct her conduct toward Nevada or a Nevada resident. Thus, because Susan’s act of driving to Nevada was a unilateral act unsanctioned by Jane and of which Jane had no specific knowledge, Nevada’s exercise of personal jurisdiction over her pursuant to specific jurisdiction would be unreasonable. Regarding the second issue, the Court assumed without deciding that seeking affirmative relief from a court subjects a litigant to that court’s jurisdiction and cannot simultaneously be done while the litigant objects to the court’s exercise of jurisdiction. The Court classified Jane’s consolidation motion as essentially a case-management device employed to promote efficiency in resolving cases relating to the accident. None of the parties’ substantive rights were implicated by the motion. Thus, the Court could not conclude that Jane’s consolidation motion amounted to a request for affirmative relief that waived her right to object to personal jurisdiction. Regarding the third issue, the Court found that the issue surrounding the interpleader action was not adequately addressed in the district court, so the Court remanded the case for analysis under agency principles using factors discussed in Tweet v. Webster, 596 F. Supp. 130, 133 (D. Nev. 1984). The Court emphasized that the district court should be the first to analyze the factual question of the control dynamics between insured and insurer, in order to determine whether Jane should be subject to jurisdiction in Nevada based on her insurance company’s filing of the interpleader action in Nevada. Dogra v. Liles, 129 Nev. Adv. Op. No. 100, ___ P.3d ___ (December 26, 2013).
Search Warrants: Failure to comply with NRS 179.045(5) triggers exclusion despite the U.S. Supreme Court’s contrary holding in United States v. Grubbs, 547 U.S. 90 (2006). In the instant case, the District Court excluded evidence seized pursuant to a search warrant where the warrant did not comply with NRS 179.045(5)’s requirement that a warrant include a statement of probable cause or have the affidavit upon which probable cause was based attached. Recognizing that Nevada may provide broader protections to its citizens than provided by the U.S. Constitution, the Nevada Supreme Court reaffirmed its decision in State v. Allen, 119 Nev. 166 (2003) (Allen II) and emphasized that “the holding of Allen II need not necessarily be affected by developments in federal Fourth Amendment jurisprudence.” Further, the Court determined that the “good-faith” exception discussed in United States v. Leon, 468 U.S. 897 (1984), was inapplicable to the instant case because a police officer’s failure to follow the requirements of NRS 179.045(5) renders reliance on the warrant unreasonable. At Footnote 2, the Court noted that “[t]he requirement that the affidavit must be attached does not apply to sealed warrants or to telephonic warrants issued pursuant to NRS 179.045(2).” State v. Kincade, 129 Nev. Adv. Op. No. 102, ___ P.3d ___ (December 26, 2013).
State Employees: Pursuant to the clear and unambiguous language of NRS Chapter 284, while hearing officers may determine the reasonableness of disciplinary actions and recommend appropriate levels of discipline, only appointing authorities have the power to prescribe the actual discipline imposed on permanent classified state employees. The Nevada Supreme Court relied upon statutory provisions which grant a hearing officer the power to review for reasonableness, and potentially set aside, an appointing authority’s dismissal, demotion, or suspension decision. Those statutory provisions neither make hearing officers “appointing authorities” nor provide hearing officers with explicit power to prescribe the amount of discipline to be imposed. Taylor v. Dep’t of Health & Human Servs., 129 Nev. Adv. Op. No. 99, ___ P.3d ___ (December 26, 2013).
Taxation: NAC 361.61038 (a regulation promulgated by the Nevada Tax Commission to value remainder parcels of real property for tax abatement purposes) does not apply retroactively. Although the parties had disputed whether this regulation conflicts with Article 10, Section 1 of the Nevada Constitution, the Court declined to consider this constitutional challenge. Cnty. of Clark v. LB Props., Inc., 129 Nev. Adv. Op. No. 96, ___ P.3d ___ (December 12, 2013).
Trusts: Because in-rem jurisdiction only extends to property and the disputed assets were no longer trust property after they were transferred to the limited partnership, NRS 164.010(1) and NRS 164.015(6) did not confer jurisdiction upon the district court to enter a constructive trust on those assets and a personal monetary judgment against the former trustee and third-party company. The Court emphasized that “[b]ecause the claims against the former trustee arose from alleged breaches of fiduciary duties to the limited partnership and not to the trust, the district court erred by entering a personal judgment against the former trustee in a trust accounting action.” In re Aboud Inter Vivos Trust, 129 Nev. Adv. Op. No. 97, ___ P.3d ___ (December 19, 2013).
Details for each opinion can now be found on the “Advance Opinions” page published by the Nevada Supreme Court 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).