Nevada Appellate Court Summaries (11-1-18)

Nevada Appellate Court Summaries was written by attorney Joe Tommasino. This long format piece is designed to highlight summaries of recent opinions from Nevada’s Court of Appeals and Supreme Court from the Nevada. The content of this post was originally submitted for publication in the December 2018 issue of Communique, the official publication of the Clark County Bar Association (CCBA). Due to space constraints, this long format feature will be published exclusively on the CCBA’s website. All rights reserved. To request permissions to reprint, contact CCBA at (702) 387-6011.

Supreme Court of Nevada: 

Civil procedure:   The district court properly denied a pro-se plaintiff’s NRCP 60(b) motion for relief that was filed more than five months after the court dismissed his case because he did not comply with procedural requirements.  A motion for NRCP 60(b)(1) relief must be filed “within a reasonable time” and “not more than 6 months after the proceeding was taken or the date that written notice of entry of the judgment or order was served.”  While district courts should assist pro-se litigants as much as reasonably possible, a pro-se litigant cannot use his alleged ignorance as a shield to protect him from the consequences of failing to comply with basic procedural requirements.  Rodriguez v. Fiesta Palms, LLC, 134 Nev. Adv. Op. No. 78, ___ P.3d ___ (October 4, 2018).

Criminal Procedure:  When a defendant moves to admit evidence to show that a young victim has the knowledge to contrive sexual allegations, a district court should afford the defendant an opportunity, outside the jury’s presence, to show that “due process requires the admission of such evidence because the probative value in the context of that particular case outweighs its prejudicial effect on the [victim].” 

When seeking to offer evidence to show that a young victim has the knowledge to contrive sexual allegations, the defendant must first make an offer of proof as to the evidence the defendant seeks to admit at trial.  Next, the district court should conduct a hearing where the defendant “must present justification for admission of the evidence, detailing how the evidence is relevant to the defense under the facts in the case.”  The State then should be given the opportunity to respond by showing how the evidence lacks sufficient probative value to overcome the risk of unfair prejudice, confusion of the issues, or misleading the jury.  The district court should then determine whether the evidence is relevant and, if so, weigh the probative value of the evidence against its prejudicial effect as required by NRS 48.035.  The district court should focus on “whether the introduction of the victim’s past sexual conduct may confuse the issues, mislead the jury, or cause the jury to decide the case on an improper emotional basis.” Finally, the district court should state, on the record, its findings of fact and conclusions of law as to what evidence is and is not admissible.  In this opinion, the Court also reminded district courts to follow the three-step procedure in  Batson v. Kentucky, 476 U.S. 79, 86 (1986), because the use of a peremptory strike to remove a potential juror on the basis of race is unconstitutional.  Williams (Gregory) v. State, 134 Nev. Adv. Op. No. 83, ___ P.3d ___ (October 25, 2018).

Family law:  (1) NRS 432B.550(5)(a) creates a sibling presumption and mandates that when a child is in foster care, the district court must presume that the child’s best interest is “to be placed together with the siblings of the child”; and (2) although adoption severs a child’s legal relationship with the biological parents and places with the adoptive parents the power of making all parental decisions concerning the child, adoption does not preclude application of the legislative presumption that placing siblings together is in a child’s best interest.   While no statute defines “sibling” for purposes of placements under NRS Chapter 432B, NRS 432B.550(5)(b) recognizes relative status based on consanguinity, and no statute expressly severs sibling status for placement purposes once one of the siblings is adopted.   Given the Legislature’s emphasis on maintaining such relationships whenever possible throughout domestic-relations and dependency statutes, the Supreme Court of Nevada could not conclude that the Legislature intended that the sibling presumption disappear once a child is adopted.  Mulkern v. Dist. Ct. (Clark Cty. Dep’t of Family Serv.’s), 134 Nev. Adv. Op. No. 82, ___ P.3d ___ (October 18, 2018).

Medical malpractice:  For purposes of NRS 41A.100(1)(d), a tooth injury is not “directly involved” or “proximate” to a hysterectomy; therefore, the plaintiff in this case was not required to attach to her complaint a supporting affidavit from a medical expert.   The Supreme Court of Nevada interprets the phrase “directly involved in the treatment or proximate thereto” in NRS 41A.100(1)(d) quite narrowly.  Moreover, the Court has indicated that parts of the body targeted by anesthesia are not “directly involved” with or “proximate” to surgery upon an unrelated part of the body.  Dolorfino v. Univ. Med. Ctr. of S. Nevada, 134 Nev. Adv. Op. No. 79, ___ P.3d ___ (October 4, 2018). 

Physicians:  A physician’s due-process rights do not attach at the investigation stage of a complaint made to the Nevada State Board of Medical Examiners.  When a complaint against a physician is filed with the Board, a committee of Board members investigates the complaint.  Because NRS 630.352(1) prevents members in the investigative committee from later participating in adjudicating claims stemming from the investigation, the Nevada Supreme Court extended the holding in Hernandez v. Bennett-Haron, 128 Nev. 580, 287 P.3d 305 (2012), and concluded that “a physician’s due process rights do not attach to the administrative agency’s fact-finding role.”  Sarfo v. State, Bd. of Med. Exam’rs, 134 Nev. Adv. Op. No. 85, ___ P.3d ___ (November 1, 2018).

Public records:  (1) The Public Employees’ Retirement System of Nevada (PERS) maintains in a computer database certain employment and pension-payment information about government retirees; and (2) under the Nevada Public Records Act,  where a records request “merely requires searching a database for existing information, is readily accessible and not confidential,” and “the alleged risks posed by disclosure do not outweigh the benefits of the public’s interest in access to the records,” the Act mandates that PERS disclose the information.  While an individual retiree’s physical file, which contains personal information such as social-security numbers and beneficiary designations, may not be inspected in its entirety, that does not make all the information kept in that file confidential when the information is stored electronically and PERS can extract the nonconfidential information from the individual files.  The Act requires a state agency to query and search its database to identify, retrieve, and produce responsive records for inspection if the agency maintains public records in an electronic database.  Moreover, the search of a database or the creation of a program to search for existing information is not the “creat[ion] [of] new documents or customized reports,” as contemplated by prior cases.  Pub. Employees’ Retirement Sys. of Nevada v. Nevada Policy Research Inst., Inc., 134 Nev. Adv. Op. No. 81, ___ P.3d ___ (October 18, 2018).

Public records:  A two-part, burden-shifting test applies to determine the scope of redaction of names of persons identified in an investigative report with nontrivial privacy claims.   First, the government is required to establish a “personal privacy interest stake to ensure that disclosure implicates a personal privacy interest that is nontrivial or. . . more than [ ] de minimis.”  Second, if the agency succeeds in showing that the privacy interest at stake is nontrivial, the requester “must show that the public interest sought to be advanced is a significant one and that the information [sought] is likely to advance that interest.”  Clark Cty. School Dist. v. Las Vegas Review-Journal, 134 Nev. Adv. Op. No. 84, ___ P.3d ___ (October 25, 2018).

Real property:  (1) The presumptions from Sack v. Tomlin, 110 Nev. 204, 871 P.2d 298 (1994), concerning tenants in common apply to joint tenants; and (2) prior to dividing fractional shares held by cotenants, the initial presumption of equal ownership must be successfully rebutted.   Under Sack, cotenants are presumed to equally share property, “unless circumstances indicate otherwise.”  Additionally, the presumption of equal shares may be rebutted through unequal contributions to property by unrelated cotenants who lack donative intent.  If successfully rebutted, fractional shares are based on the amount contributed by each party.  The case of Langevin v. York, 111 Nev. 1481, 907 P.2d 981 (1995), purportedly applied the Sack presumptions to joint tenants, but it divided property in proportion to the amount contributed by each party without clearly rebutting the presumption of equal ownership. In the instant case involving the partition of real property, the Supreme Court of Nevada clarified that “Langevin did not overrule Sack, particularly because Langevin noted that Sack was controlling law.”  As such, the initial presumption that cotenants share equally must first be successfully rebutted through evidence of lack of relatedness or donative intent, prior to the court dividing the property or proceeds in proportion to each party’s contributions.  Howard v. Hughes, 134 Nev. Adv. Op. No. 80, ___ P.3d ___ (October 4, 2018).


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).