Nevada Appellate Court Summaries (8-2-19)

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’s fees: Attorney’s fees incurred by a plaintiff in bringing a two-party breach-of-contract claim against a defendant do not constitute special damages under the narrow and limited exceptions recognized in Nevada law. The Court disavowed an interpretation of prior case law that had been read to broadly allow attorney fees as special damages whenever the fees were a reasonably foreseeable consequence of injurious conduct. Pardee Homes of Nevada v. Wolfram, 135 Nev. Adv. Op. No. 22, ___ P.3d ___ (July 3, 2019).

Bail: (1) Because the district court increased bail after making an initial bail determination, it was required to make a finding of good cause under NRS 178.499(1) for the subsequent increase in bail; however, (2) the district court failed to engage in a meaningful analysis to determine whether good cause was shown. In determining whether good cause to increase bail exists, the district court must consider the statutory factors outlined in NRS 178.498 and NRS 178.4853. Here, the district court’s decision to increase bail four times over the initial amount, without considering the defendant’s inability to pay and over his objection, seriously undermined NRS 178.498(2)’s requirement that the district court assess a defendant’s inability to post bail before making a bail determination. Cameron, Jr. (Timmie) v. Dist. Ct. (State) , 135 Nev. Adv. Op. No. 28, ___ P.3d ___ (July 18, 2019).

Common carriers: (1) Nevada law imposes a heightened duty of care on a common carrier toward its passengers with respect to transportation-related risks; (2) for non-transportation risks, the common carrier owes a duty of reasonable care, and when the carrier is aware of a passenger’s disability, the duty of reasonable care includes providing safe transport that the circumstances reasonably require in light of the known disability. Here, a 51-year-old intellectually disabled man choked to death on a sandwich while riding on a paratransit bus operated by First Transit, and the man’s parents and heirs sued First Transit and its bus driver for negligence. The only connection between First Transit and the choking is that the choking occurred while the disabled man was riding on First Transit’s bus. To extend First Transit’s extraordinary duty to this situation would “go beyond the reason for the [common carrier] rule and treat public carriers specially for all purposes rather than for those risks associated with the conducting of its business.” The special relationship between First Transit, as a common carrier, and its passenger, did create a duty for First Transit to aid the man when he suffered a medical event on the bus. However, the duty to exercise reasonable care to render aid was not extraordinary or heightened. A common carrier is not required to take any action beyond that which is reasonable under the circumstances. “In the case of an ill or injured person, [the common carrier] will seldom be required to do more than give such first aid as [it] reasonably can, and take reasonable steps to tum the sick man over to a physician, or to those who will look after him and see that medical assistance is obtained.” First Transit v. Chernikoff, 135 Nev. Adv. Op. No. 32, ___ P.3d ___ (August 1, 2019).

Employment: A public employee has no private cause of action against a union for breach of the duty of fair representation. A public employee’s right to fair representation arises under Nevada’s Local Government Employee-Management Relations Act (EMRA). The Employee-Management Relations Board (EMRB) has exclusive original jurisdiction over any unfair labor practice arising under the EMRA, including a claim that the union breached its duty of fair representation. An employee must exhaust the administrative remedies set forth in the EMRA before seeking relief in district court. This means that the employee must present the fair- representation claim to the EMRB within six months of it arising. If the employee is aggrieved by the EMRB’s decision, the employee then may seek judicial review of the EMRB’s decision. Thus, when it comes to a fair-representation claim, the district court’s jurisdiction is limited to reviewing the EMRB’s decision. City of Mesquite v. Eighth Jud. Dist. Ct. , 135 Nev. Adv. Op. No. 33, ___ P.3d ___ (August 1, 2019).

Federal Foreclosure Bar: (1) In SFR Investments Pool 1, LLC v. U.S. Bank, N.A. , 130 Nev. 742, 334 P.3d 408 (2014), the Supreme Court of Nevada held that NRS 116.3116(2) provides a homeowners’ association (HOA) with a “superpriority” lien that, when properly foreclosed, extinguishes a first deed of trust, but that is not the case when the Federal Housing Finance Agency (FHFA) owns the loan secured by the deed of trust or when the FHFA is acting as conservator of a federal entity such as the Federal Home Loan Mortgage Corporation (Freddie Mac) or the Federal National Mortgage Association (Fannie Mae); (2) as the Court explained in Saticoy Bay LLC Series 9641 Christine View v. Federal National Mortgage Ass’n, 134 Nev. 270, 272-74, 417 P.3d 363, 367-68 (2018), the provision in 12 U.S.C. § 4617(j)(3) (2012), commonly referred to as the Federal Foreclosure Bar, preempts NRS 116.3116(2) and prevents an HOA foreclosure sale from extinguishing the first deed of trust in those circumstances; (3) here, the Court held that Nevada’s recording statutes impose no requirement for Freddie Mac to be identified as the beneficiary on the publicly recorded deed of trust to establish its ownership interest in the subject loan; and (4) here, Freddie Mac’s loan servicer is not required to produce either the actual loan servicing agreement with Freddie Mac, or the original promissory note, to establish Freddie Mac’s ownership interest in the loan, where properly authenticated business records otherwise establish that ownership interest. Because the loan servicer in this case introduced properly authenticated business records, the Court affirmed the judgment of the district court, which determined Freddie Mac owned the subject loan at the time of the HOA’s foreclosure sale, such that the HOA sale purchaser took title to the property subject to the first deed of trust by operation of the Federal Foreclosure Bar. Daisy Trust v. Wells Fargo Bank, 135 Nev. Adv. Op. No. 30, ___ P.3d ___ (July 25, 2019).

Guardianship: A district-court order extending a temporary guardianship is not independently appealable. The statutory framework regarding temporary guardianships contemplates periodic review of those guardianships, and the challenged district-court order does not finally resolve the request for a permanent guardianship. Thus, the order does not resolve all issues before the court and is not a final judgment for purposes of NRAP 3A(b)(1). In re Guardianship of Gomez Wittler, 135 Nev. Adv. Op. No. 31, ___ P.3d ___ (August 1, 2019).

HOA-foreclosure-sale redemption statute: (1) In SFR Investments Pool 1, LLC v. U.S. Bank, N.A, 130 Nev. 742, 334 P.3d 408 (2014), the Supreme Court of Nevada held that NRS 116.3116(2) (2013) provided a homeowners’ association (HOA) with a “superpriority” lien that, when properly foreclosed, extinguished a first deed of trust and vested title in the foreclosure sale purchaser “without equity or right of redemption,” NRS 116.31166(3) (1993); (2) in the wake of SFR Investments, the Nevada’s Legislature enacted substantial amendments to NRS Chapter 116’s HOA-foreclosure-sale statutes, in part, by creating a statutory right for homeowners, holders of a recorded security interest, and successors in interest to redeem property within a 60-day time frame after such a sale; and (3) here, the homeowner complied with the redemption statute. The redemption statute includes a notice requirement. Under NRS 116.31166(4), a unit owner is obligated to provide notice of redemption to the person who conducted the HOA foreclosure sale as well as the person who purchased the property at the sale. Where, as here, the unit owner is redeeming the unit, the notice of redemption “must” be accompanied by “a certified copy of the deed to the unit.” However, a certified copy of the deed was not provided in conjunction with the redemption notice in this case. The Supreme Court considered whether the statute requires strict compliance or substantial compliance, based upon the language used and policy considerations. The Court decided that substantial compliance with NRS Chapter 116’s redemption statute’s notice requirement is sufficient because “the purpose of [NRS 116.31166(4)] can be adequately served in a manner other than by technical compliance with the statutory or rule language.” Saticoy Bay LLC Ser. 9050 W Warm Springs 2079 v. Nev. Ass’n Serv.’s , 135 Nev. Adv. Op. No. 23, ___ P.3d ___ (July 3, 2019).

HOA-lien foreclosure: (1) The HOA in this case did not give the first deed-of-trust holder the notice of default Nevada law requires to foreclose a superpriority lien; (2) despite this failure, the district court held that the lien foreclosure sale extinguished the first deed of trust and quieted title in favor of the foreclosure sale buyer’s successor, but the district court erred when it found that the first deed-of-trust holder was not entitled to notice at the address specified in the deed of trust; and (3) the Supreme Court vacated and remanded for the district court to decide whether, given this notice defect, the first deed-of-trust holder deserves relief from the sale. Here, the HOA’s agent failure to mail U.S. Bank the notice of default at the address given for it in the recorded deed of trust violated NRS 116.31168 and NRS 107.090(3). The district court made no finding on actual notice or prejudice because of its erroneous findings that statutory notice of default was either unnecessary or acceptable. If, on remand, the district court finds that the HOA’s agent did not substantially comply with NRS 116.31168 and NRS 107.090(3), that U.S. Bank did not receive timely notice by alternative means, and that U.S. Bank suffered prejudice as a result, the district court should determine whether, under NRS 107.080 (2011), it should declare the sale void to the extent it purports to extinguish U.S. Bank’s deed of trust. The Supreme Court of Nevada noted that “[a] void sale, in contrast to a voidable sale, defeats the competing title of even a bona fide purchaser for value.” U.S. Bank Nat’l Ass’n ND v. Resources Grp. LLC, 135 Nev. Adv. Op. No. 26, ___ P.3d ___ (July 3, 2019).

Juries: The trial court may empanel an anonymous jury where (1) there is a strong reason for concluding that it is necessary to enable the jury to perform its factfinding function, or to ensure juror protection; and (2) reasonable safeguards are adopted by the trial court to minimize any risk of infringement upon the defendant’s fundamental rights. Factors bearing on the first part of the above test include the following:
(1) The defendant’s involvement with organized crime;
(2) The defendant’s participation in a group with the capacity to harm jurors;
(3) The defendant’s past attempts to interfere with the judicial process or witnesses;
(4) The potential that the defendant will suffer lengthy incarceration if convicted; and
(5) Extensive publicity that could enhance the possibility that jurors’ names would become public and expose them to intimidation and harassment.
Regarding the second<.em> part of the above test, the Supreme Court emphasized that “although providing the jury with a plausible and nonprejudicial reason for anonymity is a sufficient precaution, it is not a necessary one in Nevada.” A district court may determine that providing such instruction is not reasonably necessary to safeguard a defendant’s rights, and such a determination will depend on the facts of the case. Separately in the opinion, the Court held that “a district court need not instruct a jury that is responsible for imposing a sentence in a first-degree murder case under NRS 175.552 about the effects of a deadly weapon enhancement.” Menendez-Cordero v. State<.em>, 135 Nev. Adv. Op. No. 29, ___ P.3d ___ (July 25, 2019).

Sentence credits: (1) Here, Appellant Gerardo Perez is serving a sentence for using a deadly weapon in the commission of a second-degree murder in 2003, and, in a postconviction petition for a writ of habeas corpus, he challenged the computation of time he has served; and (2) although he claimed that the credits he earns under NRS 209.4465 must be applied to the minimum term of his enhancement sentence, the district court correctly rejected that argument, concluding that the applicable sentencing statute specified a minimum term that Perez had to serve before becoming eligible for parole and therefore NRS 209.4465(7)(b) precluded the respondent warden from applying the statutory credits to the minimum term of Perez’s enhancement sentence. Here, NRS 200.030(5) prescribed the sentence for the primary offense of second-degree murder: either life with the possibility of parole or a definite term of 25 years, both “with eligibility for parole beginning when a minimum of 10 years has been served.” Perez therefore was sentenced for the weapon enhancement pursuant to a statute that specified a minimum sentence–10 years–that he had to serve before becoming eligible for parole on the enhancement sentence. As such, NRS 209.4465(7)(b) precluded the warden from applying Perez’s statutory credits to the minimum term of his weapon-enhancement sentence. Perez (Gerardo) v. Warden, 135 Nev. Adv. Op. No. 24, ___ P.3d ___ (July 3, 2019).

Special Immigrant Juvenile (SIJ) status: Under 8 U.S.C. § 1101(a)(27)(J) (2012) and NRS 3.2203, a child-custody order can satisfy the first predicate SIJ finding, which requires a person be “appointed” to have custody over a juvenile, and the second predicate SIJ finding can be made where reunification is not viable with one parent due to abuse, abandonment, neglect, or some similar basis under Nevada law. Federal law provides a pathway for undocumented juveniles residing in the United States to acquire lawful permanent residency by obtaining SIJ status under 8 U.S.C. § 1101(a)(27)(J). Obtaining SIJ status is a two-step process implicating both state and federal law: first, the applicant must go to state court to obtain a juvenile court order issuing predicate findings, and only after such findings are made can the applicant petition the United States Citizenship and Immigration Services (USCIS) for SIJ status. The state trial court does not determine whether a petitioner qualifies for SIJ status, but rather provides an evidentiary record for USCIS to review in considering an applicant’s petition. The Nevada Legislature enacted NRS 3.2203 in 2017 to comport with federal law and codify the juvenile courts’ existing authority to issue predicate findings for purposes of 8 U.S.C. § 1101(a)(27)(J). Under the SIJ statutes, for an undocumented juvenile to be eligible to petition the USCIS, the state court’s predicate findings must establish the following:
(1) The juvenile is dependent on a juvenile court, the juvenile has been placed under the custody of a state agency or department, or the juvenile has been placed under the custody of an individual appointed by the court (dependency-or-custody prong) ;
(2) Due to abandonment, abuse, neglect, or some comparable basis under state law, the juvenile’s reunification with one or both parents is not viable (reunification prong); and
(3) It is not in the juvenile’s best interest to be .returned to the country of the juvenile’s origin (best- interest prong) .
An order determining physical custody of a child satisfies the dependency-or-custody prong for SIJ predicate findings. Moreover, showing that reunification with one parent is not viable satisfies the reunification prong for SIJ predicate findings. In approving of one-parent SIJ cases, the Court joined the majority of states that have considered this issue. Amaya v. Guerrero Rivera (Child Custody) , 135 Nev. Adv. Op. No. 27, ___ P.3d ___ (July 3, 2019).

Summary judgment: Because of the important role of summary judgment in promoting sound judicial economy, courts should not hesitate to discourage meritless litigation in instances where claims are deficient of evidentiary support and are based on little more than the complainants’ conclusory allegations and accusations. To survive summary judgment, the nonmoving party must do more than simply show that there is some metaphysical doubt as to the operative facts, relying upon more than general allegations and conclusions set forth in the pleadings, and must present specific facts demonstrating the existence of a genuine issue. The Court commented that “in instances such as this, where an action is brought with practically no evidentiary basis to support it, summary judgment can be a valuable tool to discourage protracted and meritless litigation of factually insufficient claims.” Boesiger v. Desert Appraisals, LLC, 135 Nev. Adv. Op. No. 25, ___ P.3d ___ (July 3, 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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