Nevada Appellate Court Summaries (5-3-19)

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: 

Alimony: Alimony can be just and equitable even when not based on financial need; however, the alimony award in this case must be reversed because the receiving spouse’s share of community property will produce passive income sufficient to maintain her marital standard of living. After examining the historical underpinnings of alimony and prior case law, the Supreme Court of Nevada held that alimony can be just and equitable both when necessary to support the economic needs of a spouse and to compensate for a spouse’s economic losses from the marriage and divorce, including to equalize post-divorce earnings or help maintain the marital standard of living. Separately, the Supreme Court of Nevada further held that “community funds spent on extramarital affairs are dissipated such that the district court has a compelling reason to make an unequal disposition of community property.” The Court also recognized that, under Nevada law, the district court’s oral pronouncement of divorce did not terminate the community.NRS 123.220 makes all property acquired after the marriage community property, with no exception for an oral pronouncement of divorce. Therefore, the Court remanded this matter for the district court to consider the accumulation and waste of community property between its oral pronouncement of the termination of community property and the actual termination when the written divorce decree was entered. Kogod v. Cioffi-Kogod C/W 71147, 135 Nev. Adv. Op. No. 9, ___ P.3d ___ (April 25, 2019).

Employment: After appellant Nevada Department of Corrections (NDOC) terminated respondent Brian Ludwick’s employment for a first-time offense, Ludwick was reinstated by a hearing officer on administrative appeal; however, the hearing officer erred by relying, even if only in part, on a regulation that the State Personnel Commission (Commission) had not approved as statutorily required. The hearing officer also did not properly consider, as addressed in the recent opinion O’Keefe v. State, Department of Motor Vehicles, 134 Nev., Adv. Op. 92, 431 P.3d 350 (2018), whether Ludwick’s actions constituted violations of the valid regulations NDOC charged him with violating and, if so, whether those violations warranted termination as a first-time disciplinary measure. Accordingly, the Supreme Court of Nevada reversed the district court’s denial of NDOC’s petition for judicial review and remanded the matter for further proceedings. State, Dep’t of Corr. v. Ludwick, 135 Nev. Adv. Op. No. 12, ___ P.3d ___ (May 2, 2019).

Personal jurisdiction: Nevada’s long-arm statute encompasses a conspiracy-based theory of personal jurisdiction, which the Supreme Court of Nevada adopted herein as a basis on which specific jurisdiction may lie. A conspiracy theory of personal jurisdiction provides that a nonresident defendant who lacks sufficient minimum contacts with the forum may be subject to personal jurisdiction based on a co-conspirator’s contacts with the forum.To support jurisdiction based on a conspiracy theory and to satisfy due process, a plaintiff must show (1) an agreement to conspire, (2) the acts of co-conspirators are sufficient to meet minimum contacts with the forum, and (3) the co-conspirators reasonably expected at the time of entering into the conspiracy that they would be subject to jurisdiction in the forum state. The underlying rationale for exercising personal jurisdiction on the basis of conspiracy is that, because co-conspirators are deemed to be each other’s agents, the contacts that one co-conspirator made with a forum while acting in furtherance of the conspiracy may be attributed for jurisdictional purposes to the other co-conspirators. Tricarichi v. Coöperatieve Rabobank, U.A., 135 Nev. Adv. Op. No. 11, ___ P.3d ___ (May 2, 2019).

Trusts: In the instant case, because the terms of the trust instrument require the unanimous consent of all trustees to make a distribution of half of the trust’s assets, the district court erred by ordering, under NRS 163.556, half of a wholly charitable trust’s property “decanted” (i.e., appointed) into a newly created wholly charitable trust with the same purpose as the original charitable trust, to be administered solely by one trustee of the original trust, against the objection of co-trustees. Although the statute’s plain language provides that “a trustee” may decant if he or she has discretionary distribution powers, NRS 163.556(1), “trustee” is a statutorily defined term for trusts generally and charitable trusts specifically. Because the statute’s phrase “a trustee” contemplates action by multiple trustees, and because the right under NRS 163.556(1) is subject to the terms of the trust instrument, the Supreme Court of Nevada had to address whether the terms of the trust instrument permit a trustee to make a unilateral distribution. Trusts must be construed in a manner effecting the apparent intent of the settlor.Here, the relevant section of the trust instrument provides: “Trustees . . . may, in their discretion,” (emphasis added) manage trust property and income. By its plain language, the trust instrument therefore gives the “trustees” power to manage trust funds only in “their” unanimous discretion; it does not give a trustee power to manage trust funds in his or her unilateral discretion.

In the absence of statute or contrary direction in the trust instrument, the trustees are regarded as a unit. They hold their powers as a group so that their authority can be exercised only by the action of all the trustees. Because the trust instrument does not provide that a trustee may unilaterally distribute trust property, unanimous action by the trustees would be required to exercise the decanting right under the statute. Thus, the district court erred in ordering a course of action that the trust instrument did not permit and the settlors did not intend.

In re: Fund for the Encouragement of Self Reliance, 135 Nev. Adv. Op. No. 10, ___ P.3d ___ (April 25, 2019).

Water: Based on Nevada’s ongoing requirement that a permittee show reasonable diligence to apply water to beneficial use, the anti-speculation doctrine applies to requests for extensions of time. The anti-speculation doctrine precludes speculative water-right acquisitions without a showing of beneficial use. The same policies for applying the anti-speculation doctrine to an original application for a permit are also present in an application for an extension of time. Both applications require the applicant to show efforts to “apply the water to the intended beneficial use with reasonable diligence.” Thus, when a permittee’s rights are based on water appropriation by a third party, the permittee must show a formal relationship with the third party in order to satisfy NRS 533.380’s ongoing requirement that the permittee demonstrate reasonable diligence to apply the water to beneficial use. And because NRS 533.380(3) specifically requires a permittee to provide evidence of its efforts to put the water to beneficial use with each request for an extension of time, the anti-speculation doctrine applies to each extension request. In applying for an extension of time, the permittee must submit proof and evidence of the third-party relationship. Sierra Pacific Indus. v. Wilson, P.E., 135 Nev. Adv. Op. No. 13, ___ P.3d ___ (May 2, 2019).

Workers’ compensation: (1) Under NRS 616C.495 and NAC 6160.498, an injured employee may elect to receive a lump-sum payment for a permanent partial disability (PPD) award; (2) however, if the employee’s PPD rating exceeds a 25-percent whole person impairment (WPI), the employee may only elect to receive a lump-sum payment for up to 25 percent of the rating, and for anything exceeding that 25 percent, the employee must receive payments in installments; and (3) in the instant case, the Supreme Court of Nevada decided that a workers’ compensation insurer cannot reduce the 25-percent lump-sum-payment limit for an employee’s PPD award when that employee has already received a lump-sum payment for a previous PPD award. The Court concluded that “there is no legal basis to justify such a reduction, and we are unwilling to read any such justification into Nevada’s statutory workers’ compensation scheme when the statutory scheme is otherwise silent on the issue.” City of Reno v. Yturbide, 135 Nev. Adv. Op. No. 14, ___ P.3d ___ (May 2, 2019).


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.