July 2010 Archives

City of Reno v. Citizens v. Cold Springs - land use and municipal code - you're on your own as I have no interest in this.

Carrigan v. Commission of Ethics - The majority summarizes the issues and its holding:  "In this appeal, we consider whether the Nevada Commission on Ethics' censure of an elected public officer for alleged voting violations under NRS 281A.420(2)(c) violates the First Amendment.  NRS 281A.420(2)(c) sets forth one of the legal standards for determining whether a public officer must abstain from voting on a particular matter, based on the officer's "commitment in a private capacity to the interests of  others."  NRS 281A.420(8) defines this commitment to include four specific prohibited relationships between a public official and others and describes a fifth catchall definition as "[a]ny other commitment or relationship that is substantially similar to a commitment or relationship described in this subsection."  The catchall definition of a prohibited relationship by a public official in NRS 281A.420(8)(e) confronts the First Amendment on appeal."  

          We first conclude that voting by public officers on public issues is protected speech under the First Amendment.  Because NRS 281A.420(2)(c) directly involves the regulation of protected speech by a public officer in voting, we next determine that the definitional statute NRS 281A.420(8)(e) must be strictly scrutinized under a First Amendment overbreadth analysis.  Applying a strict scrutiny standard, we conclude that NRS 281A.420(8)(e) is unconstitutionally overbroad in violation of the First Amendment, as it lacks necessary limitations to its regulations of protected speech.  Consequently, the district court erred in its interpretation of NRS 281A.420(8)(e) and its application to NRS 281A.420(2)(c), and thus, we reverse the district court's order."

The relationship at issue was that of a personal friend and campaign manager to a city council member.  Justice Parraguirre did not participate.  Justice Pickering dissents.  She summarizes her position:    "Before today, no published decision has held that an elected local official engages in core political speech when he or she votes on an individual land use matter.  Likewise, no published decision reviewing the ethical propriety of such a vote has subjected the applicable legislative prohibition against conflicts of interest to strict scrutiny or invalidated it on overbreadth grounds.  Because I believe charting this course is both unprecedented and unwise, I respectfully dissent."

Boorman v. Nevada Mem'l Cremation Society - Certified question under NRAP 5 relating to the alleged handling of a deceased person's remains:  "First, close family members who were aware of the death of a loved one and to whom mortuary services were being provided may assert an emotional distress claim for the negligent handling of a deceased person's remains against a mortuary.  Those persons do not need to observe or have any sensory perception of the offensive conduct, and do not need to present evidence of any physical manifestation of emotional distress.  Second, the only person who may assert an emotional distress claim against a county coroner for the negligent handling of a deceased person's remains is the person with the superior right to dispose of the decedent's body.  That person does not need to observe or have any sensory perception of the offensive conduct, and does not need to present evidence of any physical manifestation of emotional distress.  Third, a claim for conversion of a deceased human body or its parts does not exist under Nevada law." 

Quinlan v. Camden USA - "Audrey Quinlan sued Camden USA, Inc. for damages after she tripped on a sidewalk in its apartment complex.  She lost at trial and was ordered to pay Camden $41,976 in attorney fees and costs.  The district court based its award on the offer of judgment Camden made under NRS 17.115 and NRCP 68, which Camden sent by facsimile.  Although Quinlan's lawyer received the offer of judgment, he had not expressly consented to fax service as NRCP 5(b)(2)(D) requires.  It was error to shift fees and costs based on Camden's offer of judgment because NRS 17.115, NRCP 5(a), and NRCP 68(a) all require an offer of judgment to be served in compliance with NRCP 5 and Camden's was not."  

  

Oral argument calendar: July 7

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Lockwood (Joshua) v. State of Nevada,
Docket Nos. 52615/50864
Carson City - 10:00 a.m. - Full court
Joshua Lockwood was convicted of three counts of sexual assault of a child under 16. After his trial, Lockwood moved for a new trial, arguing that a juror had engaged in misconduct by conducting Internet research and, during deliberations, telling the other jurors what she had learned. Lockwood appeals from the judgment of conviction and the order denying his motion for a new trial. ISSUES: Did the district court abuse its discretion by admitting hearsay evidence? Did the district court abuse its discretion by denying the motion for a new trial based on juror misconduct?

In re: Amerco Derivative Litigation,
Docket No. 51629
Carson City - 10:30 a.m. - Full court
This is an appeal from a district court order dismissing a shareholder derivative action. AMERCO is a Nevada corporation whose main operating subsidiary is U-Haul International, Inc. In 2002, Paul Shoen filed a derivative suit against AMERCO and others for breach of fiduciary duty and other claims. Shoen sought to forego the requirement of making a demand upon the board of directors prior to commencement of the action, alleging that such a demand was futile. The district court granted AMERCO's motion to dismiss based on the failure to adequately allege demand futility. After that decision was appealed, this court reversed the district court's decision, clarifying the demand futility standards and remanding for further proceedings. On remand, the district court again granted motions to dismiss the action on the grounds that a 1995 settlement between AMERCO and some of its other shareholders barred the claims in this suit, and that appellants lacked standing to pursue claims on behalf of AMERCO. ISSUES: Did the district court err in concluding that a prior settlement precludes the appellants from pursuing their claims? Did the district court err in concluding that appellants lack standing to pursue their claims?

Oral argument calendar: July 6

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Bayerische Motoren Werke (BMW) v. Roth (Alyson),
Docket Nos. 50262/52496
Carson City - 10:00 a.m. - Full court
This case arises from a car accident in Clark County. Alyson Roth was a passenger in her own vehicle, which was being driven by Jennifer Stapleton, when the vehicle rolled over and crashed. Roth was ejected from the car and severely injured. Roth sued the car manufacturer, BMW, alleging various vehicle defects, including a defective seat belt assembly. While Nevada law generally prohibits the admission of evidence regarding the nonuse of a seat belt, the trial judge permitted BMW to use seat belt evidence for the limited purpose of refuting Roth's claim that the seat belt assembly was defective and caused her injuries. The jury found that the BMW vehicle was not defective but that the driver, Stapleton, was negligent. Roth moved for a new trial, arguing that BMW exceeded the allowed use of the seat belt evidence. The district court granted the motion for a new trial as to both BMW and Stapleton. As a sanction for attorney misconduct, the district court directed BMW to pay both Roth and Stapleton their attorney fees and costs for the first trial. ISSUES: Did the district court err in granting a new trial? If a new trial was appropriate, did the district court err in directing BMW to pay Roth's and Stapleton's attorney fees and costs? Did the district court err in excluding evidence that BMW complied with Federal Motor Vehicle Safety Standards?

Ford (Jerome) v. State of Nevada,
Docket No. 52272
Carson City - 11:30 a.m. - Full court
Jerome Ford was arrested during a "sting" operation on Las Vegas Boulevard South after he approached an undercover police officer who was dressed as a prostitute and, after a brief exchange, pitched the services he had to offer as a pimp. Ford was eventually convicted of pandering. ISSUES: Is Nevada's pandering statute, NRS 201.300, unconstitutionally overbroad and/or vague? Was there sufficient evidence supporting Ford's conviction?

Ramirez v. State - "we conclude that the jury was not completely and accurately instructed as to the necessary elements of second-degree felony murder and that the improper instruction affected appellant Felicia Ramirez's substantial rights.  Accordingly, we reverse the district court's judgment of conviction and remand this matter for a new trial."  The jury instructions failed to include the immediate-and-direct-causal-relationship element of second degree felony murder.  The Court finds plain error based upon the instruction, the State's failure to specify the felony under which it sought a second-degree felony murder conviction, and conflicting evidence as to who inflicted the victim's moral wounds.

Reno Newspapers v. Sheriff - The Court grants a writ of mandamus compelling a sheriff, under the Public Records Act, to provide records on the identity of those holding a concealed firearms permit and non-confidential information concerning post-permit records of investigation of a permit holder, or suspension or revocation of a permit holder's permit.  The case involved a newspaper's request to obtain records concerning the Governor's concealed weapons permits.

Renown Health v. Vanderford - "In this appeal, we consider whether hospitals owe an absolute nondelegable duty to provide competent medical care to their emergency room patients through independent contractor doctors.  Although the parties settled in this matter, appellant Renown Health, Inc., reserved its right to appeal the district court's interlocutory order granting partial summary judgment based on the imposition of a nondelegable duty.  A portion of the settlement remains contingent upon this appeal.  We conclude that no such absolute duty exists under Nevada law, nor are we at this time willing to judicially create one.  Accordingly, we reverse the district court's grant of partial summary judgment insomuch as the district court concluded that hospitals have such a nondelegable duty.  We hold that Renown may be liable for patient injuries under the ostensible agency doctrine that we previously recognized in Schlotfeldt v. Charter Hospital of Las Vegas, 112 Nev. 42, 910 P.2d 271 (1996)."

Strickland v. Waymire - "These consolidated appeals require us to interpret Article 2, Section 9 of the Nevada Constitution, which subjects every public officer in Nevada to recall by special election upon the filing of a qualifying recall petition signed by "not less than twenty-five percent (25%) of the number" of registered voters "who actually voted in the state or in the county, district, or municipality [that the officer] represents, at the election in which [the officer] was elected."  Nev. Const. art. 2, ยง 9.

            The question presented is whose signature counts toward the 25 percent needed to qualify a recall petition.  Is it any registered voter, as the district court held?  Or must the signatures come from those registered voters who in fact--"actually"--voted at the election in which the public officer was elected, as the Secretary of State and the Attorney General have concluded?  Reasonable policy arguments exist on both sides.  But Article 2, Section 9's text and relevant history convince us that the latter reading is more faithful to the provision's test and the evident understanding of the citizens who enacted it.  We therefore reverse."

Bahena v. Goodyear Tire & Rubber Co. -  "In this appeal we consider whether the district court abused its discretion when it struck a defendant's answer, as to liability only, as a  discovery sanction pursuant to NRCP 37(b)(2)(C) and NRCP 37(d).  We conclude that the district court did not abuse its discretion by imposing non-case concluding sanctions and by not holding a full evidentiary hearing.  We further conclude that the district court exercised its inherent equitable power and properly applied the factors set forth in Young v. Johnny Ribeiro Building, 106 Nev. 88, 92-93, 787 P.2d 777, 780 (1990).  We therefore affirm the judgment of the district court."