Nevada Appellate Court Summaries (10-24-19)

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:

Community property: (1) A district court has significant discretion when determining whether to grant or deny a non-employee spouse’s request for pension payments before the employee spouse has retired, and the district court did not abuse that discretion here; and (2) the district court did not err in considering omitted assets and dividing them equally between the parties because vacation and sick pay earned and accrued during a marriage are community property and subject to equal division under NRS 125.150(1)(b). Retirement benefits earned during the marriage are community property. This is so even though the retirement benefits are not vested. The Supreme Court of Nevada has previously held that a non-employee spouse may elect to receive a community-property share of pension benefits when the employee spouse is first eligible to retire, regardless of when the employee spouse chooses to retire. The Court has further held that because pension benefits are a community asset, an employee spouse should not be able to “defeat the non-employee spouse’s interest in the community property by relying on a condition solely within the employee spouse’s control,” i.e., the retirement date. Thus, a district court has discretion to order pension payments at the employee spouse’s first eligibility for retirement, even if the employee spouse has not yet retired. NRS 286.510 provides the date at which an employee spouse is first eligible to retire without suffering a reduction of benefits. First eligibility varies depending on an employee spouse’s effective date of membership in PERS, profession, number of years served, and age. Whether the employee spouse’s PERS account has fully matured is not a factor provided in NRS 286.510 for determination of first eligibility. NRS 125.155 governs the valuation and distribution of PERS benefits. By using permissive language, the Legislature unambiguously provided district courts with the discretion to deny a non-employee spouse’s request for pension payments before the employee spouse’s retirement. Implicit in the power to deny a non-employee spouse’s pension payments is the lesser power to reduce such payments. The Court therefore held that while a district court is permitted to order pension payments at first eligibility, such an order is not mandated. NRS 125.155 clarifies that a district court may deny or reduce such payments if the employee spouse has not yet retired. Under this framework, a district court has discretion when determining how, and to what extent, to accommodate a non-employee spouse’s request for pension payments before the employee spouse’s retirement. The Court cautioned that NRS 125.155(2)’s broad grant of discretion is not unlimited, however. Overriding principles of equity and fairness govern a district court’s exercise of discretion. Separately, the Court cited NRS 125.150(3) which provides that a party can seek adjudication of an asset mistakenly omitted from the divorce decree within three years of discovering the mistake. The district court did not abuse its discretion when it equally divided the vacation and sick pay earned and accrued during the marriage. Vacation and sick pay are forms of deferred compensation. If the work is performed during the marriage, compensation for that work belongs to the community. The district court did not abuse its discretion when it characterized the husband’s vacation and sick pay earned and accrued during the marriage as omitted assets under NRS 125.150(3) and distributed them equally. Kilgore v. Kilgore, 135 Nev. Adv. Op. No. 47, ___ P.3d ___ (October 3, 2019). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Nonresidential construction malpractice: (1) For actions involving nonresidential construction malpractice, NRS 11.258 requires the plaintiff’s attorney to file an affidavit and an expert report “concurrently with the service of the first pleading”; and (2) an initial pleading filed under NRS 11.258(1) is void ab initio only where it is served without a concurrent filing of the required attorney affidavit and expert report. Here, the district court dismissed appellant Marcus Reif’s complaint because he filed it, though he did not serve it, without an affidavit and expert report. In doing so, the district court relied on a statement in Otak Nevada, LLC v. Eighth Judicial District Court, 127 Nev. 593, 599, 260 P.3d 408, 412 (2011), that “a pleading filed under NRS 11.258 without the required affidavit and expert report is void ab initio.” (Emphasis added). The Supreme Court of Nevada took this opportunity to correct Otak and clarify that a pleading is void ab initio under NRS 11.258(1) only where the pleading is served without a concurrent filing of the required attorney affidavit and expert report, not where the pleading is merely filed. Reif v. Aries Consultants, Inc., 135 Nev. Adv. Op. No. 51, ___ P.3d ___ (October 10, 2019). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/  

Parole: When a penal statute provides for a life sentence with the possibility of parole and specifies a period of time that must be served before parole eligibility, the district court has authority under NRS 176.033(2) to reduce the life sentence to not less than the period specified for parole eligibility, and the Parole Board would be able to petition for such a reduction only after the parolee has served 10 consecutive years on parole. In passing A.B. 236, 80th Leg. (Nev. 2019), the Nevada Legislature recently amended the statute to remove the Parole Board’s authority in this respect, effective July 1, 2020. Given the effective date, that amendment does not apply here. State, Bd. Of Parole Comm’rs v. Dist. Ct. (Thompson (Marlin)), 135 Nev. Adv. Op. No. 53, ___ P.3d ___ (October 24, 2019). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Petitions for judicial review: Premature petitions for judicial review do not vest subject-matter jurisdiction in the district court; a petition for judicial review may not precede the administrative agency decision it contests, and the agency decision must satisfy NRS 233B.125 in order to constitute a decision that is subject to judicial review. The underlying petition for judicial review was filed after the administrative agency stated its disposition on the record, but that utterance did not include findings of fact and conclusions of law with a concise and explicit statement of the underlying facts in support. The disposition stated on the record accordingly did not constitute a final decision for purposes of commencing the period set forth in NRS 233B.130(2)(d) in which an aggrieved party may seek judicial review. Consequently, because the underlying petition for judicial review was filed before the administrative agency’s written order, which did constitute a final decision, the petition failed to comply with the relevant statutory requirements. Accordingly, the petition did not vest jurisdiction in the district court, and dismissal was an appropriate remedy. State, Bd. of Architecture v. Dist. Ct., 135 Nev. Adv. Op. No. 49, ___ P.3d ___ (October 3, 2019). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Real property: Ruby Lake Estates Homeowner’s Association’s (RLEHOA) is authorized to impose assessments for two reasons: (1) Ruby Lake Estates (RLE) is a common-interest community within the meaning of NRS 116.021 because RLE’s Declaration contained an implied payment obligation for the common elements and other real estate that appellants had notice of by virtue of the Declaration when they purchased their lots; and (2) NRS 116.3101(1) does not apply to common-interest communities formed before 1992 and, consequently, RLEHOA did not need to be organized before the first lot in RLE was conveyed. In 1991, the Nevada Legislature adopted the Uniform Common-Interest Ownership Act, as codified in NRS Chapter 116. NRS Chapter 116 defines what constitutes a “common-interest community” and also authorizes the creation of a “unit-owners association” to govern the common-interest community. As relevant to this appeal, a unit-owners’ association is authorized to impose assessments on unit owners for the unit owners’ association to maintain “common elements,” which, generally speaking, comprise real estate within the common-interest community that is owned by the unit-owners’ association but that benefits all unit owners. Appellants own property in RLE, a neighborhood created in 1989. In the underlying declaratory-relief action, they challenged respondent RLEHOA’s authority to impose assessments on them. In particular, appellants argued that RLE was not a validly created “common-interest community” because the recorded Declaration that created RLE did not expressly state that RLE’s residents would be responsible for paying assessments for the maintenance of common elements or other real estate aside from their individual units. Alternatively, appellants contended that RLEHOA was not a validly created “unit-owners’ association” because it was not organized until 2006, while NRS 116.3101 requires a unit-owners’ association to be created before the first lot in the common-interest community is conveyed. On appeal, the Supreme Court of Nevada held that RLEHOA is a common-interest community pursuant to NRS 116.021 because RLE’s Declaration sufficiently gave notice to prospective unit owners that they would be financially liable for maintaining common elements. The Court also held that RLEHOA is a valid unit-owners association even though it was organized after RLE conveyed the first lot because NRS 116.3101(1) does not apply to pre-1992 common-interest communities. Artemis Expl. Co. v. Ruby Lakes Estates, 135 Nev. Adv. Op. No. 48, ___ P.3d ___ (October 3, 2019). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Suggestion of death: A suggestion of death that is properly served triggers the deadline for filing a motion to substitute, regardless of which party files it and whether it identifies the deceased party’s successor or representative. The procedure for substituting a successor or representative in place of a deceased party to a civil action is governed by NRCP 25(a)(1). Under that rule, the filing and service of a suggestion of death triggers a deadline to file a motion to substitute a successor or representative in place of the deceased party. Once the deadline is triggered, the court must dismiss the action if a motion to substitute is not filed before the deadline expires. Here, the Supreme Court of Nevada reconsidered Barto v. Weishaar, 101 Nev. 27, 692 P.2d 498 (1985), and its conclusion that a suggestion of death emanating from the deceased party must identify the deceased party’s successor or representative in order to trigger the deadline in NRCP 25(a)(1) to file a motion to substitute. Although the Court acknowledged the importance of precedent, the Court was convinced that Barto expanded NRCP 25(a)(1) beyond its plain language. Therefore, the Court overruled Barto. Separately, the Court concluded that the district court arbitrarily or capriciously exercised its discretion when it denied a motion to substitute based solely on the court’s preference that someone other than the special administrator appointed by the probate court be appointed as administrator of the deceased party’s estate. At Footnote 3, the Court noted that the NRCP were amended on March 1, 2019. The amended NRCP 25(a)(1) imposes a 180-day deadline relating to a motion for substitution. Because the events in this case occurred before the amendment, the Court referenced the prior version of NRCP 25(a)(1) and its 90-day deadline. McNamee v. Dist. Ct. (Bianchi), 135 Nev. Adv. Op. No. 52, ___ P.3d ___ (October 17, 2019). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Voluntary manslaughter: (1) Here, circumstantial evidence strongly suggested that the killing occurred in a sudden heat of passion upon provocation; and (2) district courts must instruct juries on the defendant’s theory of the case where there is any evidence, no matter how weak, to support it. Voluntary manslaughter is a lesser-included offense of murder. Voluntary manslaughter involves “a serious and highly provoking injury inflicted upon the person killing, sufficient to excite an irresistible passion in a reasonable person, or an attempt by the person killed to commit a serious personal injury on the person killing.” Moreover, the killing must result from a sudden, violent, irresistible passion that was “caused by a provocation apparently sufficient to make the passion irresistible.” The Supreme Court of Nevada reminded the district courts that “a defendant is entitled to a jury instruction on his theory of the case, so long as there is evidence to support it, regardless of whether the evidence is weak, inconsistent, believable, or incredible.” The evidence here could have supported a voluntary-manslaughter verdict, so the district court was required to instruct the jury on voluntary manslaughter. Newson v. State, 135 Nev. Adv. Op. No. 50, ___ P.3d ___ (October 10, 2019). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

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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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