The Nevada Supreme Court has issued its third and fourth opinions of the year. One opinion addresses a child support issue and the other addresses the law-of-the-case doctrine in the context of an insurance action and also addresses a choice-of-law issue.
Fernandez v. Fernandez - "This is an appeal by the father of minor children from an order denying a motion to modify child support under NRS 125B.145. The trial court held that it was "not bound" by NRS 125B.145 because the parties "previously agreed in a stipulation and order modifying the Decree of Divorce that neither party [would] seek modification of child support." In the trial court's view, this made the child support order nonmodifiable, so long as the father had "sufficient means (assets and/or income) to meet the agreed upon child support obligations."
The motion to modify alleged that the father's monthly gross income had dropped more than 80 percent, to the point his child support obligation exceeded it. The mother's circumstances, meanwhile, had improved to the extent that her assets and gross monthly income equaled or outmatched his. Declining to apply NRS Chapter 125B's modification provisions to these facts was error. Stipulated or not, the obligation the father sought to modify was incorporated and merged into the decree as an enforceable child support order. State and federal statutes give child support orders super-legal reach. Because children's needs and parents' circumstances can change unpredictably over the life of a child support order, NRS Chapter 125B provides for their periodic review and modification--up or down--as changed circumstances dictate. The statutory scheme does not admit a child support order that cannot be modified based on a material change in circumstances.
The father's motion presented facts that, if true, qualified for relief. He did not need to wait until he was missing court-ordered child support payments or in financial peril before being heard under NRS 125B.145 and its related statutes, NRS 125B.070 and NRS 125B.080. We therefore reverse and remand."
Dictor v. Creative Management - " In this appeal, we consider two legal doctrines: first, the application of the law-of-the-case doctrine, and second, the proper choice-of-law analysis for defenses to the subrogation of underlying tort claims.
When an appellate court explicitly or by necessary implication determines an issue, the law-of-the-case doctrine provides that the determination governs the same issue in subsequent proceedings in the same case. Because our unpublished order in a previous appeal involving these same parties and stemming from the same lower court case narrowly addressed a single issue, we conclude that the district court did not violate the law-of-the-case doctrine and the district court was not precluded from applying the Missouri Property and Casualty Insurance Guaranty Association Act, Missouri Revised Statute section 375.772 (Mo. Rev. Stat. ยง 375.772), and other alternate legal defenses on remand. We also affirm the district court's choice-of-law conclusion, that the Missouri statute barring tort claims against an insured of an insolvent insurer precludes appellant CPCI's subrogation claims."
The parties to this appeal dispute whether SNWA's 1989 applications were "pending" in 2003 under the legislative amendment and, therefore, whether the amendment applied retroactively to those applications. We conclude that "pending" applications are those that were filed within one year prior to the enactment of the 2003 amendment. And, in the absence of statutory language and legislative history demonstrating an intent that the amendment apply retroactively to SNWA's 1989 applications, we determine that the State Engineer could not take action on them under the 2003 amendment to NRS 533.370.
Because we determine that the 1989 water appropriation applications were not pending in 2003, we conclude that the State Engineer violated his statutory duty by failing to take action within one year after the final protest date. Thus, we reverse the order of the district court and remand for a determination of whether SNWA must file new groundwater appropriation applications or whether the State Engineer must re-notice SNWA's 1989 applications and reopen the period during which appellants may file protests."
Huesner (Allen) v. State, Docket No. 52023
Las Vegas- 10:00 a.m. - Justices Hardesty, Douglas, and Pickering.
The evidence presented at trial demonstrated that after Allen Heusner had been served with a temporary protective order, he broke into the home he shared with his wife, beat to death the man with whom his wife had been having an intimate relationship, and set a blanket on fire. Heusner was convicted of first-degree murder, first-degree arson, and burglary while in possession of a deadly weapon. Heusner raises numerous issues on appeal. ISSUES: Did the district court err in allowing the State to pursue a theory of felony murder with the predicate felony being burglary based upon entry with an intent to murder? Did the district court abuse its discretion by admitting prior bad act evidence? Did the district court abuse its discretion when it instructed the jury that it did not have to be unanimous on the theory supporting the first-degree murder conviction? Did the admission of evidence of Heusner's post-arrest silence violate his Fifth Amendment right against self-incrimination?
Love (Sherri) v. State, Docket No. 52403
Las Vegas- 10:30 a.m. - Justices Hardesty, Douglas, and Pickering
Sherri Love is appealing her conviction for murdering her 7-year-old daughter, attempting to murder her 8-year-old son, and abusing and neglecting her son by killing his sister in front of him and stabbing him in the hand. This incident occurred in Clark County several days after Love left a detoxification program, where she was being treated for alcoholism and drug addiction. ISSUES: Did the district court properly instruct the jury?
Polk (Levenral) v. State, Docket No. 52733
Las Vegas- 10:30 a.m. - Justices Hardesty, Douglas, and Pickering
This appeal challenges witness testimony, Nevada's deadly weapon enhancement, the district court's ability to dismiss an injured juror prior to consulting with the parties, and whether a juror who lost consciousness during trial should have been dismissed. Levenral Polk is appealing his second conviction for murdering a long-time friend, by shooting him from a car. Polk was initially convicted of first-degree murder, but was granted a new trial by a federal court. At his second trial in Clark County, Polk was convicted of second-degree murder with the use of a deadly weapon and discharging a firearm out of a motor vehicle. ISSUES: Did the district court improperly permit a witness to offer hearsay evidence about forensic test results when that witness did not perform the forensic testing? Is the deadly weapon enhancement statute unconstitutional in light of the United States Supreme Court's decision in District of Columbia v. Heller? Did the district court abuse its discretion by dismissing an injured juror prior to consulting the parties? Did the district court err when it failed to dismiss a juror who lost consciousness during trial?
Tsai (Paul) v. Hsu (Ann), Docket No. 50549
Las Vegas (Regional Justice Center) - 10:00 a.m. - Justices Cherry, Saitta, and Gibbons
This case involves a 1996 settlement agreement in a divorce proceeding between Paul Tsai and Ann Hsu. Part of the agreement provided that a parcel of land owned by the parties in Las Vegas was to be held in trust to pay for their children's educational expenses. No trust documents were created at the time the settlement agreement was reached, but apparently the parties quitclaimed the property to their children. After the divorce, the children lived with Hsu in Hong Kong where they attended private elementary and secondary schools, paid for by Hsu. In 2007, the property was sold for a sizeable amount of money. The parties now dispute the allocation of the proceeds from the sale of the property. ISSUES: Did the parties transfer their entire interest in the property to their children? Was the trust meant to finance the children's private elementary and secondary school education when Tsai never consented to sending the children to private elementary and secondary schools? Did the district court lack jurisdiction to make rulings regarding the trust?
Salas (Miguel) v. State, Docket No. 51385
Las Vegas (Regional Justice Center) - 10:30 a.m. - Justices Cherry, Saitta, and Gibbons
In this appeal, issues are raised about the grand jury indictment of Miguel Salas, who was a juvenile at the time of an auto theft that led to a high speed chase and a head-on collision. Salas was certified to stand trial as an adult following the incident in which he and Alberto Spindola broke into and stole an automobile in Las Vegas. The pair attempted to evade capture by fleeing at high-speed from a police officer. The chase ended in a head-on collision with another car. Salas was arrested, certified as an adult, and charged with numerous felony violations. The justice court, however, dismissed charges of robbery with the use of a deadly weapon and conspiracy to commit robbery for lack of probable cause, but bound over Salas to the district court on the remaining charges. The State then convened a grand jury, which indicted Salas on the two previously dismissed charges. Salas was found guilty at trial on all but three charges. This appeal followed. ISSUES: Did the district court abuse its discretion in determining that the State provided Salas with reasonable notice of the grand jury proceedings? Did the district court have jurisdiction to proceed on the grand jury indictment? Did Salas demonstrate "exceptional circumstances" to show the district court abused its discretion in failing to remand his case to the juvenile court? Did the State present sufficient evidence to convict Salas of robbery and conspiracy to commit robbery?
Callara v. Las Vegas Hilton, Docket No. 51645
Las Vegas (Regional Justice Center) - 11:30 a.m. - Justices Cherry, Saitta, and Gibbons
This is an appeal of a split verdict at trial in a personal injury case. Roseann Callara slipped and fell in the parking/valet parking drop-off area of the Las Vegas Hilton after which two employees of Hilton moved her to a nearby bench. Subsequently, Callara sued Hilton for neglecting to keep the area clean and for moving her after she fell. At trial, a jury returned a verdict in favor of Callara on her claim that Hilton employees negligently moved her after she fell. The jury, however, ruled for Hilton on the claim of failing to keep the area clean. This appeal followed. ISSUES: Did the district court abuse its discretion when it concluded that Hilton should not be held to admissions made pre-trial? Did the district court abuse its discretion by refusing to submit the admissions to the jury as evidence? Did the district court abuse its discretion by allowing previously undisclosed witness testimony, and by directly questioning that witness? Did Hilton have an obligation to create records regarding when areas of its property had been cleaned and should a jury instruction have been given that the Hilton spoiled evidence when Hilton did not destroy any records, but instead never created the records that Callara sought?
Cacho (Ashton) v. State, Docket No. 51647
Las Vegas (Regional Justice Center) - 1:30 p.m. - Justices Cherry, Saitta, and Gibbons
In this case, Ashton Cacho is appealing his 2008 conviction by a Clark County jury for one count each of open or gross lewdness and indecent exposure, and four counts of lewdness with a child under the age of 14. ISSUES: Are the convictions redundant? Did the district court err in not conducting a competency hearing regarding the child victim? Did the State withhold exculpatory evidence and/or engage in prosecutorial misconduct? Did the State present sufficient evidence to support the jury's verdict?
Gamble (Clarence) v. State, Docket No. 52521
Las Vegas (William S. Boyd School of Law) - 10:00 a.m. - Chief Justice Parraguirre, and Justices Hardesty and Pickering (Justice Douglas voluntarily recused himself from participation in this matter)
Numerous issues are raised in this appeal by Clarence Gamble, who was convicted of shooting and killing a woman with whom he was romantically involved. At trial, Gamble claimed he acted in self-defense. However, eyewitness testimony indicated otherwise. Gamble was convicted of first-degree murder with the use of a deadly weapon and aggravated stalking. Gamble now appeals the judgment of conviction. ISSUES: Did the district court err in refusing to dismiss the aggravated stalking charge? Did the district court err in denying Gamble's objections to the State's use of peremptory challenges to excuse two prospective African-American jurors? Did the district court err in instructions given to the jury? Did the prosecutor commit misconduct warranting reversal of Gamble's convictions?
Valley Health System v. Garcia (Waneira), Docket No. 50507 c/w 50509 and 50684
Las Vegas (William S. Boyd School of Law) - 11:00 a.m. - Justices Hardesty, Douglas, and Pickering
This is an appeal of a jury verdict in a medical malpractice case. In 1995, Waneira Garcia was about 39 weeks pregnant when she arrived at Valley Hospital in Las Vegas complaining of potential complications with her pregnancy. Her daughter was delivered via Caesarian section, and suffers from ongoing developmental delays that will likely require ongoing medical treatment. Garcia attributed her baby's problems to the negligence of the hospital and filed a lawsuit alleging medical malpractice against her OB/GYN doctor, Joseph Watson, M.D., the hospital, and two of its employees, Mary Kathryn Watts and Madonna Sturgeon. The district court entered a default judgment against Sturgeon for her failure to appear at the trial. A jury found in favor of Dr. Watson, but determined that the hospital and its named employees were negligent and awarded Garcia damages and attorney fees. This appeal followed. ISSUES: Did the district court err in entering a default judgment against Sturgeon for her failure to attend the trial? Did the district court err in instructing the jury? Did the district court abuse its discretion in awarding attorney fees to Garcia?
Boorman v. Nev. Memorial Cremation Society, Docket No. 52492
Bishop Gorman High School - 10:00 a.m. - Full Court
This case stems from a request from the United States District Court, District of Nevada, for a Supreme Court decision on legal matters where there is no controlling Nevada precedent. In the incident leading to the legal action, Richard Boorman succumbed to a lethal dose of alcohol and drugs while in Las Vegas for a bachelor party. Richard's body was transported to the Clark County coroner for autopsy, where his internal organs were removed. The coroner maintains that the organs were then placed in a plastic bag and left with the body. Richard's body was then sent to the mortuary, which embalmed it before returning it to family members in London, England, without his internal organs. After discovering the absence of Richard's organs, the family filed an action against Memorial Cremation Society, Clark County, and the employees of both entities, alleging, among other claims, negligent and intentional infliction of emotional distress, breach of fiduciary duty, and conversion, related to the mishandling of Richard's body. Because no clearly controlling Nevada precedent for these issues exists, the district court certified several questions to the Supreme Court. ISSUES: What class of persons may bring a claim for negligent or intentional infliction of emotional distress for the mishandling of a deceased person's remains? Does that person need to be present and observe the negligent act? Does that person need to demonstrate some physical manifestation of emotional distress? Does a county coroner's office owe a duty to the family members of a deceased individual not to lose, misplace, or misappropriate the deceased person's organs such that the coroner's office could be liable for emotional distress claims? Does a claim for conversion of a deceased human body or its parts exist under Nevada law, and if so, what class of person may bring such a claim? If such a claim exists, may a plaintiff recover emotional distress damages arising out of conversion of the human remains?
Chao (Greg) v. State, Docket No. 50336
Bishop Gorman High School - 11:00 a.m. - Full Court
This appeal raises treaty issues between the United States and Canada. Greg Chao, a Canadian citizen who was apprehended in Canada, is appealing his conviction in Clark County for robbery and first-degree murder in the death of Don Idiens, a fellow Canadian, who was in Las Vegas for an extended vacation. ISSUES: Did the district court err when it declined to suppress a statement Chao made to Las Vegas Metropolitan Police Department detectives while he was in custody in Canada because the statement was allegedly obtained in violation of a treaty between the United States and Canada? Did the district court err in permitting the State to introduce evidence of Chao's testimony at the Canadian extradition hearing because such testimony is akin to testimony in a suppression hearing in Nevada, which is inadmissible under NRS 47.090?
Crawford & Co. v. Strong-Puzey,
Docket No. 52282
Carson City - 10:00 a.m. - Justices Cherry, Saitta, and Gibbons
This case involves a workplace injury and whether an injured party who accepts a lump-sum settlement can reopen the claim. In the underlying case, Connie Strong-Puzey underwent surgery on her ankle to repair damage caused by a workplace injury. During the surgery, Strong-Puzey experienced a low level of oxygen saturation. Following surgery, she demonstrated a marked change in her behavior and a decline in both her mental and physical health. Nevertheless, Strong-Puzey elected to receive a lump-sum permanent partial disability award from her employer, which limited her ability to reopen her workers' compensation claim unless she developed new injuries or a change in circumstance. After accepting this award, Strong-Puzey was diagnosed with hypoxic encephalopathy, which a neurologist connected to a lack of oxygen during surgery. Strong-Puzey sought to reopen her claim but the appeals officer denied her request. Strong-Puzey then sought judicial review in the district court in Carson City. The district court granted her petition and ordered her claim be reopened. This is an appeal of the district court decision. ISSUES: Whether a claimant who has knowledge of a condition--but accepts a lump-sum settlement--can then reopen that claim based on a change of circumstances or newly acquired injury. Whether the district court erroneously substituted its judgment for that of the appeals officer.
From lvcourtsblog.com:
Pursuant to Administrative Order 09-12, electronic filing will be mandatory in the Eighth Judicial District Court on February 1, 2010 for all Civil and Domestic case filings.
Criminal filings will continue to be accepted over the counter at this time and may also be electronically filed.
Our current E-File vendor is Wiznet. Their website address is www.wiznet.com; their customer service telephone number is (800) 297-5377.
The court will provide a limited number of workstations for filing in the Courthouse for use by pro se litigants.
If you have any questions about the Court's requirements or processes, you can contact the Eighth Judicial District Court's Wiznet desk at 702-671-0514 (Civil/Criminal) and (702) 455-5941 or (702) 455-2357 (Family).
In Briscoe v. Virginia, the Court accepted certiorari on issues concerning the Confrontation Clause and expert testimony. After hearing oral argument, the Court summarily vacated the judgment of the Supreme Court of Virginia and remanded the case for further proceedings not inconsistent with Melendez-Diaz v. Massachusetts.
In Hemi Group v. City of New York, the Court addresses a civil RICO action and finds that because the City of New York cannot show that it lost tax revenue "by reason of" an alleged RICO violation (based on failure to provide customer information for internet cigarette purchases), it cannot state a RICO claim. The plaintiff must show a direct relationship, "but for" causation and proximate causation.
The Court granted certiori in two cases, that were consolidated for oral argument: Abbott v. United States and Gould v. United States. They present the question of (1) whether the term "any other provision of law" of 18 USC 924(c) includes the underlying drug trafficking offense or crime of violence; and (2) if not, whether it includes another offense for possessing the same firearm in the same transaction. Scotusblog provides the opinion below, petition for cert. and the response.
Via Scotusblog, the US Supreme Court issued several opinions this week:
Wood v. Allen - Interpretation of 28 USC 2254(d)(2) and its requirement that federal habeas relief not be granted, in relevant part, unless the state court's decision was based "on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." The issue of whether the state court unreasonably applied Strickland is not addressed.
South Carolina v. North Carolina - original action concerning apportionment of river water, the opinion addresses the standard for a nonstate entity's intervention in an original action.
Kucana v. Holder - judicial review of discretionary immigration decisions by the Attorney General is prohibited only for determinations made discretionary by statute, not by regulation.
Presley v. Georgia - per curiam, 7-2 - In addition to a First Amendment right of access to jury selection, there is also a Sixth Amendment right to public proceedings for the accused. Before closing the courtroom, trial courts are obligated to take every reasonable measure to accomodate public attendance at criminal trials.
Wellons v. Hall - per curiam, 5-4 - The Court decides the defendant was entitled to discovery. It pretty much speaks for itself:
"From beginning to end, judicial proceedings conducted for the purpose of deciding whether a defendant shall be put to death must be conducted with dignity and respect. The disturbing facts of this case raise serious questions concerning the conduct of the trial, and this petition raises a serious question about whether the Court of Appeals carefully reviewed those facts before addressing petitioner's constitutional claims. We know that the Court of Appeals committed the same procedural error that we corrected in
Cone v. Bell, 556 U. S. ___, ___ (2009) (slip op., at 17-18). We do not know how the court would have ruled if it had the benefit of our decision in that case.Petitioner Marcus Wellons was convicted in Georgia state court of rape and murder and sentenced to death. Although the trial looked typical, there were unusual events going on behind the scenes. Only after the trial did defense counsel learn that there had been unreported
ex parte contacts between the jury and the judge, that jurorsand a bailiff had planned a reunion, and that "either during or immediately following the penalty phase, some jury members gave the trial judge chocolate shaped as male genitalia and the bailiff chocolate shaped as female breasts," 554 F. 3d 923, 930 (CA11 2009). The judge had not reported any of this to the defense."
Candidates have file for judicial seats:
Supreme Court Seat A - Justice Hardesty
Supreme Court Seat E - Justice Parraguirre
Dept. 26 - Bruce Gale, Kurt Harris, Gloria Sturman
Dept. 27 - Nancy Allf, Blain Beckstead
Dept. 28 - Lucinda Coumou, Jack Howard, Ronald Israel
Dept. 29 - Kenneth Pollock, Susan Scann
Dept. 30 - Michael Davidson, Patricia Palm, Jerry Wiese
Dept. 31 - Phil Dabney, Joanna Kishner, Joshua Kunis, Marc Risman
Dept. 32 - Rob Bare, Donn Ianuzi, Ellen Stoebling
Family Dept. A - Bill Voy
Family Dept. B - Gloria Sanchez
Family Dept. C - Steve Jones, Maria Maskall, Denise Pifer
Family Dept. D - Robert Teuton
Family Dept. E - Chuck Hoskin
Family Dept. F - Ellen Bezian, Bill Gonzalez
Family Dept. S - David Churchill, R. Nathan Gibbs, Ethan Kottler, Tony Liker, Greta Muirhead, Vincent Ochoa, Rebecca Wallace
Family Dept. T - John Jensen, Terrance Marren, Michele Mercer, Gayle Nathan, Carl Piazza
Justice Court 2 - Joseph Sciscento
Justice Court 3 - Tony Abbatangelo, Lary Lamoreux, Janiece Marshall, Nicholas Perrino
Justice Court 4 - Melissa Saragosa
Justice Court 6 - William Kephart, Kristine Kuzemka, Rachael Stafford
Justice Court 7 - Karen Bennett, Robert Kurth
Justice Court 9 - Joe Bonaventure
Justice Court 10 - Melanie Andress-Tobiasson
Justice Court 13 - Suzan Baucum, Frank Coumou, James Gubler, Jonathan Schulman, Richard Scow
Justice Court 14 - Colby Beck, Amber Candelaria, Conrad Hafen, Bernie Zadrowski
Searchlight - Stanton Colton, Richard Faber, Richard Hill, Dave "Batman" Thompson
Washoe County District Court Dept. 15 - David Hardy
Washoe County Family Court 5 - Deborah Schumacher
Washoe County Family Court 11 - Chuck Weller
Reno Justice Court Dept. 2 - Pete Sferrazza
Reno Justice Court Dept. 3 - Jack Schroeder
Reno Justice Court Dept. 4 - Cotter Conway, Eric Nickel, Scott Pearson, Lewis Taitel
Reno Justice Court Dept. 5 - David Clifton
Sparks Justice Court, Dept. 2 - Kevin Higgins, Christian Wilson
