Oral argument calendar: April 5

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Sherman (Donald) v. State of Nevada (Death Penalty),

Docket No. 50653

Las Vegas - 10:00 a.m. - Full Court

In this case, Donald Sherman is appealing the denial of his second post-conviction petition for a writ of habeas corpus.  Sherman was convicted of first-degree murder, burglary, and robbery for beating his estranged girlfriend's father to death with a hammer in Clark County.   The Supreme Court affirmed Sherman's conviction and death sentence on direct appeal.  Sherman then filed his first post-conviction petition for a writ of habeas corpus in district court, as well as a supplemental petition.  Both were denied by the district court and the Supreme Court upheld the decision.  Sherman then filed this second post-conviction petition, which the district court also denied based on procedural rules.  The denial of that petition is the subject of this appeal.  ISSUES: Did the district court err in determining that Sherman's claim under McConnell v. State was procedurally barred because Sherman failed to demonstrate prejudice? Did Sherman's claim pursuant to Brady v. Maryland provide good cause sufficient to overcome the procedural default? 

Hoffman (Stuart) v. Spring Valley Hospital,

Docket No. 52813

Las Vegas - 11:30 a.m. - Full Court

This appeal arises from a dispute between Spring Valley Hospital and Medical Center and Dr. Stuart Hoffman.  Spring Valley suspended Dr. Hoffman's medical privileges and submitted a report about Hoffman to the National Practitioner Data Bank pursuant to the Health Care Quality Improvement Act.  Hoffman disputed the report and filed suit in district court against Spring Valley alleging breach of contract, breach of implied covenant of good faith and fair dealing, rescission, defamation per se, and declaratory relief.  Spring Valley filed an answer to Hoffman's complaint and moved for summary judgment, which the district court granted, concluding that federal law preempted Hoffman's state law claims.  ISSUES:  Did the district court's order granting summary judgment operate as a dismissal under NRCP 12(b)(5)?  Did the district court err by dismissing Hoffman's claim on the ground that the Health Care Quality Improvement Act preempted his state law claims?   

Harris (Linda) v. Asayama (Miyoko),

Docket No. 51388

Las Vegas - 1:30 p.m. - Full Court

This appeal involves procedural issues of first impression regarding the dismissal of a tort action stemming from a motor vehicle accident for failing to timely hold a case conference within NRCP 16.1(e)(1)'s 180-day period.  Linda Marie Harris was injured when her car collided with a vehicle driven by Miyoko Asayama.  Harris filed a district court complaint, which she served on Asayama on March 2, 2007.  Harris allegedly gave Asayama an open-ended extension of time to answer and Asayama filed an answer on June 14, 2007.  On August 6, 2007, Harris filed a request for exemption from arbitration, which the Alternative Dispute Resolution Commissioner granted on August 24, 2007.  Harris subsequently held an early case conference on December 26, 2007, after noticing the conference two days earlier, on December 24.  Asayama did not attend the December 26 conference, however, as she had informed Harris on December 24 that the notice of the conference was inadequate and that her counsel was scheduled to be off on December 26.  Harris subsequently filed an individual case conference report on January 22, 2008.  In the meantime, Asayama filed a motion to dismiss the lawsuit because Harris failed to hold an NRCP 16.1(b)(1) case conference within the 180-day period set forth in NRCP 16.1(e)(1). The district court granted the motion to dismiss because a case conference was not held in a timely manner and there were no compelling and extraordinary circumstances warranting an extension.  ISSUES:  Was Harris's complaint deemed to be in the court-annexed arbitration program from the moment of filing until it was exempted from the program?  When does NRCP 16.1(e)(1)'s 180-day period for holding a case conference start to run for cases that are not eligible for automatic exemption from the court-annexed arbitration program?  Did the district court abuse its discretion by granting Asayama's motion to dismiss the complaint, without prejudice, under NRCP 16.1(e)(1) for failing to timely hold a case conference? 

Moon (Joon) v. McDonald Carano Wilson LLP,

Docket No. 51124

Las Vegas - 2:00 p.m. - Full Court

This appeal involves procedural issues of first impression regarding the dismissal of a professional negligence and breach of contract lawsuit against a Nevada law firm for failing to timely file a case conference report within the 240-day period set forth in NRCP 16.1(e)(2).  On November 3, 2006, Joon S. Moon and Patterson Laboratories, Inc., (collectively, Moon) filed a district court complaint against McDonald Carano & Wilson, LLP, and its attorneys William A.S. McGrath and John J. Laxague (collectively, MCW). Moon served the complaint on December 29, 2006, and MCW filed an answer in January 2007.  On March 29, 2007, the arbitration commissioner exempted the case from arbitration.  On November 6, 2007, MCW filed a motion to dismiss under NRCP 16.1(e)(1) and (2), claiming that Moon failed to hold a case conference within the applicable 180-day period and/or file a joint case conference report within the applicable 240-day period.  Moon opposed the motion to dismiss, claiming that an early case conference was held on April 18, 2007, and that the case conference report was not due until November 26, 2007.  Moon filed his case conference report on November 21, 2007.  The district court entered an order dismissing the case after determining that the case was never submitted, ordered, accepted, or remanded into the court-annexed arbitration program and that there was no automatic suspension of the Nevada Rules of Civil Procedure.  ISSUES:  Was Moon's complaint deemed to be in the court-annexed arbitration program from the moment of filing until it was exempted from the program? When does NRCP 16.1(e)(2)'s 240-day period for filing a case conference report start to run for cases that are not eligible for automatic exemption from the court-annexed arbitration program? Did the district court abuse its discretion in dismissing Moon's complaint, without prejudice, under NRCP 16.1(e)(2) for failing to timely hold a case conference? Did Moon fail to hold a case conference so that NRCP 16.1(e)(1) provides an alternative basis for affirming the district court's order? 

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This page contains a single entry by JoNell published on April 5, 2010 9:02 AM.

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