Nevada Appellate Court Summaries (3-1-19)

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: 

Foreclosure Mediation Program (FMP):    Where an individual has been appointed special administrator of an estate that includes residential real property, the special administrator resides in the property as his or her primary residence, and the special administrator retains an ownership interest via intestate succession laws, he or she is entitled to participate in the FMP. The FMP applies to “owner-occupied residence[s],” defined as “housing that is occupied by an owner as the owner’s primary residence.” The stated purpose of the FMP “is to provide for the orderly, timely, and cost-effective mediation of owner-occupied residential foreclosures,” and to “encourage[ ] deed of trust beneficiaries (lenders) and homeowners (borrowers) to exchange information and proposals that may avoid foreclosure.” Under NRS 140.010, a special administrator is a person appointed “to collect and take charge of the estate of the decedent . . . and to exercise such other powers as may be necessary to preserve the estate.” (emphasis added). NRS 140.040 provides that “[a] special administrator shall . . . [t]ake charge and management of the real property and enter upon and preserve it from damage, waste and injury.” Property acquired during the marriage is presumed to be community property. “Rebuttal of the presumption requires clear and convincing evidence,” and “[e]ven a deed reciting that [the owner] owned the estate as his separate property would not of itself overcome the presumption.” The party claiming that the property is separate has the burden of demonstrating that it is not community property. Pursuant to NRS 123.250(1), upon the death of a spouse:

            (a) An undivided one-half interest in the community property is the property of the surviving spouse and      his or her sole separate property.

            (b) The remaining interest:

            (1) Is subject to the testamentary disposition of the decedent or, in the absence of such a testamentary disposition, goes to the surviving spouse. . . .

Here, the special administrator occupied the property in question as his primary residence, and he continued to do so after his wife’s death. Under such circumstances, the plain language of the relevant statutes and rules authorizes a special administrator to participate in the FMP, which is a preliminary step “necessary to preserve the estate” and keep “it from damage, waste and injury,” i.e., foreclosure. Even if the administrator statutes did not speak to this issue, reason and public policy indicate that the statutory schemes and court rules contemplate a special administrator’s participation in the FMP to avoid foreclosure of residential property occupied by the special administrator as the spouse of the deceased owner and to preserve the estate. In addition, the property was acquired during the special administrator’s marriage to the deceased spouse and is thus presumed to be community property. While the fact that the deed was titled as the decedent’s sole and separate property may suggest that it was not meant to constitute community property, the Supreme Court of Nevada concluded that the respondent bank failed to demonstrate that the property was not intended to be community property. Thus, the record supports that, upon his wife’s death, the special administrator received, at a minimum, an undivided one-half interest in the property. Accordingly, he was empowered to participate in the FMP as a special administrator and because he obtained an ownership interest in the property upon his wife’s death. Pascua v. Bayview Loan Serv., LLC., 135 Nev. Adv. Op. No. 4, ___ P.3d ___ (February 7, 2019). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Judicial discipline: NRS 1.428 is constitutional, and hearing masters are subject to the jurisdiction of the Nevada Commission on Judicial Discipline. Article 6, Section 21(1) of the Nevada Constitution creates the Commission and provides a list of positions that the Commission covers. The Nevada Legislature has enacted additional statutes related to the authority and jurisdiction of the Commission. NRS 1.440 gives the Commission jurisdiction over “judges.” NRS 1.428 defines “judge” as including “[a]ny other officer [besides those specifically enumerated] of the Judicial Branch of this State, whether or not the officer is an attorney, who presides over judicial proceedings, including. . . a. . . special master or referee.” Hearing masters and referees serve the same purpose, and accordingly, are included in the definition of “judge” under NRS 1.428. The Nevada Constitution provides an enumerated list of positions that may be disciplined by the Commission. It further provides, in the district-court section, that “[t]he legislature may provide by law for. . . Referees in district courts.” Multiple sections of the Nevada Constitution may be read in tandem to support the Legislature’s authority to expand the jurisdiction of the Commission. Although hearing masters are not specifically enumerated in the Nevada Constitution, the Nevada Constitution still gives the Legislature authority to enact laws regarding referees in district courts. Since NRS 1.428 concerns referees in district courts, the enactment of that statute was constitutional. Furthermore, the Nevada Constitution provides that the Commission may “[e]xercise such further powers as the Legislature may from time to time confer upon it.” The Legislature conferred powers over judicial officers outside of those named in Article 6, Section 21 when enacting NRS 1.428. Thus, NRS 1.428 is constitutional. The Supreme Court of Nevada noted that “the Commission having jurisdiction over a multitude of judicial officers, including hearing masters under NRS 1.428, is consistent with having a standardized system of judicial governance.” Henry (Jennifer) v. Nev. Comm’n on Judicial Discipline, 135 Nev. Adv. Op. No. 5, ___ P.3d ___ (February 28, 2019).

Nevada Court of Appeals

Torts: While a plaintiff must name the State as a party to any state-tort claims in order to comply with NRS 41.031 and NRS 41.0337, this statutory requirement does not apply to 42 U.S.C. § 1983 claims, even when brought in the same complaint as a plaintiff’s state-tort claims. NRS 41.031 and NRS 41.0337 require plaintiffs bringing state-tort claims against the State of Nevada and state employees to comply with certain requirements—particularly, naming the State as a party to the action—in order to properly invoke the State’s waiver of sovereign immunity. Under 42 U.S.C. § 1983, plaintiffs may bring claims for damages against any person who, under color of state law, deprives the plaintiff of his or her civil rights. And it is well established that the State is not considered a “person” for the purposes of bringing a § 1983 claim; thus, such claims cannot be maintained against the State. At issue in this case was the issue of how NRS 41.031 and NRS 41.0337’s requirement that the State be named as a party to invoke a waiver of Nevada’s sovereign immunity operates when a plaintiff brings an action against state employees pursuant to both NRS Chapter 41 and 42 U.S.C. § 1983. After considering this issue, the Court of Appeals held that when a plaintiff seeks to bring both state-tort claims and 42 U.S.C. § 1983 claims against state employees, the claims should be structured as follows:

           Any state tort claims must name not only the state employees, but must also include the State, on relation of the particular department, as a party to those particular claims in order to comply with NRS 41.031 and NRS 41.0337 and perfect a waiver of Nevada’s sovereign immunity.

            Any claims brought pursuant to § 1983, however, need only name the state employees, in their             individual capacities, as parties to the § 1983 claims. The plaintiff need not—and indeed cannot—name    the State as a party to the 42 U.S.C. § 1983 claims.

The Court added that “[b]eyond the fact that 42 U.S.C. § 1983 claims cannot be maintained against the State, to the extent that dismissal of [appellant] Craig’s § 1983 claims based on a failure to invoke Nevada’s sovereign immunity under NRS 41.031 and NRS 41.0337 would provide immunity over and above what is already provided by § 1983, such an application of Nevada’s statutes would violate the supremacy clause of the United States Constitution.” As a result, the Court concluded that NRS 41.031 and NRS 41.0337 cannot bar Craig from pursuing his 42 U.S.C. § 1983 claims against the respondent state employees, in their individual capacities, on sovereign-immunity grounds. Craig v. Donnelly, 135 Nev. Adv. Op. No. 6, ___ P.3d ___ (February 28, 2019). http://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

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About the author: 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).

*© 2019 Clark County Bar Association and Joe Tommasino. The content on this page was originally published in COMMUNIQUÉ, the official publication of the Clark County Bar Association. (March 2019). All rights reserved. For permission to reprint this content, contact the publisher Clark County Bar Association, 717 S. 8th Street, Las Vegas, NV 89101. Phone: (702) 387-6011.