Nevada Appellate Court Summaries (10-1-19)

The content of this post was written by Joe Tommasino for COMMUNIQUÉ, the official publication of the Clark County Bar Association (CCBA).*

Supreme Court of Nevada

Attorney discipline: The State Bar proved that attorney James A. Colin made statements in pleadings to the court concerning the integrity of several justices that he knew to be false or with reckless disregard for their truth or falsity and that he engaged in conduct prejudicial to the administration of justice, but the evidence does not establish that Colin engaged in conduct intended to disrupt a tribunal because the alleged conduct did not occur inside a courtroom or similar setting. The Rules of Professional Conduct (RPC) establish ethical guidelines for lawyers, some of which are mandatory and therefore define proper conduct for purposes of professional discipline. This case required consideration of whether to discipline Colin for violating rules that direct lawyers not to engage in conduct intended to disrupt a tribunal (RPC 3.5(d)), not to make statements concerning a judge’s integrity or qualifications that the lawyer knows to be false or with reckless disregard as to the statements truth or falsity (RPC 8.2(a)), and not to act in a way that is prejudicial to the administration of justice (RPC 8.4(d)). Considering the nature of the misconduct and similar discipline cases, the Supreme Court of Nevada concluded that a six-month-and-one-day suspension serves the purpose of attorney discipline. In re Discipline of Colin, 135 Nev. Adv. Op. No. 43, ___ P.3d ___ (September 19, 2019).

Criminal procedure: Because Nevada statutes now limit the right to bear arms for a person who has been convicted of misdemeanor battery constituting domestic violence, the Legislature has determined that the offense is a serious one; therefore, a jury trial is required. The right to a jury trial, as established by the Sixth Amendment of the United States Constitution and Article 1, Section 3 of the Nevada Constitution, does not extend to those offenses categorized as “petty” but attaches only to those crimes that are considered “serious” offenses. In determining whether a particular offense is petty or serious, a court must examine objective indications of the seriousness with which society regards the offense, and “[t]he best indicator of society’s views is the maximum penalty set by the legislature.” The United States Supreme Court has established that an offense with a maximum authorized period of incarceration of six months or less is presumptively petty. To overcome this presumption, and to demonstrate that an offense rises to the level of seriousness to warrant a jury trial, a defendant must “demonstrate that any additional statutory penalties, viewed in conjunction with the maximum authorized period of incarceration, are so severe that they clearly reflect a legislative determination that the offense in question is a serious one.” In Nevada, first-offense domestic battery is a misdemeanor crime, with a maximum authorized period of incarceration of six months. Thus, pursuant to Supreme Court precedent, there is a presumption that the offense is petty and that the right to a jury trial does not attach. However, the Nevada Legislature recently amended the penalties associated with a conviction under NRS 200.485(1)(a). Specifically, NRS 202.360—a statute that prohibits the possession or control of firearms by certain persons—was amended to criminalize possession or control of a firearm in this state by a person who has been convicted in this State or any other state of a misdemeanor crime of domestic violence as defined in 18 U.S.C. § 921(a)(33). According to the Supreme Court of Nevada, this new penalty—a prohibition on the right to bear arms as guaranteed by both the United States and Nevada Constitutions—“clearly reflect[s] a legislative determination that the offense [of misdemeanor domestic battery] is a serious one.” Given that the Legislature has indicated that the offense of misdemeanor domestic battery is serious, it follows that one facing the charge has the right to a jury trial. Andersen (Christopher) v. Dist. Ct. (City of Las Vegas), 135 Nev. Adv. Op. No 42, ___ P.3d ___ (September 12, 2019). 

HOA foreclosure sales: Although the retroactive annulment of a bankruptcy stay means that a prior HOA foreclosure sale did not legally violate the bankruptcy stay, it was reasonable for the district court to consider the bankruptcy stay in determining whether there was unfairness in the HOA foreclosure sale at the time it was held; however, the mere fact that the foreclosure sale was held in violation of the bankruptcy stay is not by itself evidence of unfairness. Even though the sale did not legally violate the retroactively annulled stay, it was proper for the district court to consider the stay in balancing the equities, as the court must consider all of the circumstances surrounding the sale. The fact that the sale was in violation of a bankruptcy stay at the time the sale was held may be relevant to a bank’s failure to act and the sale price. For example, it would be reasonable for a lender not to attend a foreclosure sale if it believes that the sale is being conducted in violation of a bankruptcy stay. And, it is possible that selling a home in violation of a bankruptcy stay, even if the stay is later retroactively annulled, could prevent bidders from attending the auction or offering a fair price. However, the Supreme Court of Nevada concluded that though the violation of the bankruptcy stay could hypothetically have been an unfairness that resulted in an inadequate sale price, no evidence showed unfairness in this case. SFR Invs. Pool 1 v. U.S. Bank, 135 Nev. Adv. Op. No. 45, ___ P.3d ___ (September 19, 2019).

Title loans: While marketed as a “modification” or “amendment” to a 210-day title loan, the Grace Period Payment Deferment Agreement (GPPDA) offered by TitleMax in 2014 and 2015 was an impermissible extension of its 210-day loan in violation of the plain language of NRS 604A.445. The GPPDA circumvented the statutory requirement that 210-day loans “ratably and fully amortize the entire amount of principal and interest payable on the loan,” and as a result, charged the borrower “additional interest” in violation of NRS 604A.210. However, TitleMax’s statutory violation was not “willful” and did not warrant the statutory sanctions imposed by the Administrative Law Judge. State, Dep’t of Bus. & Indus. v. TitleMax, 135 Nev. Adv. Op. No. 44, ___ P.3d ___ (September 19, 2019).

Water: (1) NRS 533.395 authorizes the State Engineer to rescind a water-rights permit cancellation but provides that, if the State Engineer does so, “the effective date of the appropriation under the permit is vacated and replaced by the date of the filing of the written petition [for review of the cancellation] with the State Engineer”; (2) based on the State Engineer’s adherence to this mandate, respondent in this case lost more than 50 years of priority in water rights—despite having invested nearly $1 million in improving water-use efficiency and otherwise having met all the substantive criteria for maintaining priority of its water rights—because its agent missed a filing deadline by a few weeks; (3) the respondent’s groundwater rights lie in an over-appropriated basin, so loss of original priority dates threatened complete loss of use of water should curtailment occur; and (4) given these extraordinary circumstances, the district court properly granted respondent equitable relief, restoring its water-rights original priority dates. Consideration of equity or fairness in access and distribution is one of the cardinal principles underlying every enduring water-management system. Because of the importance of water to Nevada’s citizens, long-standing precedent establishes that both the Supreme Court of Nevada and the district courts have the authority, “when warranted,” to grant equitable relief in water-law cases beyond the relief, if any, that the water-law statutes allow the State Engineer to grant. Neither the text nor the legislative history of the 1981 amendments to NRS 533.395 supports that, by those amendments, the Legislature eliminated equitable relief in permit-cancellation cases. Thus, the district court in this case had the power to grant equitable relief from the new priority date that NRS 533.395(3) mandated the State Engineer to assign. Certain limits on Nevada courts’ authority to grant equitable relief in water-law matters are noted in this opinion–namely, that absent estoppel due to an error by the State Engineer, equitable relief is not available where water was not diligently placed to beneficial use, or where, despite proper notice, the permittee does not petition the State Engineer for permit-cancellation review but proceeds directly to court. Further limitations on the availability of equitable relief in the context of water law also exist—specifically, equitable relief should only be used where it improves (1) efficiency; (2) sustainability; (3) fairness; and (4) clarity. The Supreme Court of Nevada concluded that “the district court’s decision in the instant matter falls squarely within those guidelines.” More specifically, the Court provided the following analysis for the four listed factors:

  1. Efficiency: Under Nevada water law, “[b]eneficial use shall be the basis, the measure, and the limit of the right to the use of water.” Efficiency is therefore a central concern in this state and “fundamental to [Nevada’s] water law jurisprudence.” Thus, to be a “better” remedy–that is, one ensuring more complete justice than a remedy provided by the law, any equitable relief should more effectively promote water being used in a more beneficial, unwasteful, and efficient fashion.
  2. Sustainability: This consideration has particular importance in Nevada, where “the soil is arid, and unfit for cultivation unless irrigated by the waters of running streams” and “lands otherwise waste and valueless [may only] become productive by artificial irrigation.” To properly exercise its discretion to award equitable relief, a district court should therefore take into consideration that water is an “increasingly scarce resource” and craft a remedy that recognizes the interests of future generations.
  3. Fairness: Nevada’s water is more than mere commodity; it is a public good. Thus, an equitable remedy must better effect justice than what the statute at issue requires by promoting increased fairness in water accessibility and “permitting equal sharing of the burdens as well as the benefits of . . . development.”
  4. Clarity: Because access to water is so vital in Nevada, an equitable remedy that promotes greater clarity in water law and reduces confusion may be “better” than using a statute designed to improve efficiency as a penalty that could ultimately disincentivize forward-looking efforts to improve the use of scarce water resources. State Engineer v. Happy Creek, Inc., 135 Nev. Adv. Op. No 41, ___ P.3d ___ (September 12, 2019).

Wrongful termination: Claims for wrongful termination are subject to the two-year limitations period prescribed by NRS 11.190(4)(e) for injuries or death caused by another person’s wrongful act or neglect. A wrongful termination claim provides a former employee with a remedy where her employer has wronged her by terminating her employment in violation of public policy, such as by retaliating against the employee for exercising workers’-compensation rights. More broadly, the claim involves injury to a person by violating her rights to engage in certain behavior that is protected by public policy, such as seeking workers’ compensation, performing jury duty, or refusing to violate the law. Because a wrongful-termination claim involves an injury to an ex-employee’s personal rights caused by a wrongful act of another, the claim is analogous to the cause of action described in NRS 11.190(4)(e), and NRS 11.190(4)(e) therefore sets forth the relevant limitations period. The Supreme Court of Nevada noted that attorney fees are not warranted under NRS 18.010(2)(b) for a legitimate issue of first impression. Patush v. Las Vegas Bistro, 135 Nev. Adv. Op. No. 46, ___ P.3d ___ (September 19, 2019).


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).

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