JoNell: October 2009 Archives

Mendoza-Lobos v. State -(Majority opinion authored by Chief Justice Hardesty and joined by Justices Saitta, Gibbons and Cherry) -  "In this appeal, we address two issues related to recent amendments to the deadly weapon enhancement statute, NRS 193.165(1), that require the district court to consider enumerated factors and state on the record that it has considered the factors in determining the length of the enhancement sentence.

First, we consider whether these amendments to NRS 193.165(1) violate the separation-of-powers doctrine.  Although we conclude that the amended statute violates the separation-of-powers doctrine to the extent that it requires the courts to state on the record that the enumerated factors have been considered and to make specific findings in that respect, we nonetheless elect to abide by the mandate contained therein because it serves a laudable legislative goal with respect to the length of enhancement sentences and facilitates appellate review. 

Second, we consider whether NRS 193.165(1) requires the district court to make findings on the record before imposing a sentence enhancement for the use of a deadly weapon.  We conclude that it does and that findings must be made for each enhancement.  Applying our holding to the instant case, we conclude that the district court's failure to make the required findings for two of appellant Douglas Mendoza-Lobos' enhancements does not amount to plain error warranting reversal of his conviction and sentence.  Therefore, we affirm the judgment of conviction."

Justices Douglas, Parraguirre and Pickering agree that "the portion of NRS 193.165(1) requiring the district courts to consider certain enumerated factors when imposing a sentence for a deadly weapon enhancement does not run afoul of the separation-of-powers doctrine.  I also agree with the result reached.  However, [they] disagree with [their] colleagues' conclusion that NRS 193.165(1) is ambiguous."

The Court also issued an opinion in a civil case today.  In NC-DSH v. Garner, the Court addresses the impact of an egregious fraud upon the court by attorney Lawrence Davidson.  Without knowledge or approval of his clients, Davidson settled their case for $160,000, forget the necessary settlement papers and disappeared with the money.  The clients obtained an order from the district court vacated a stipulated final judgment under NRCP 60(b).  The hospital defendant appealed.  The Court affirms:  "The district court found that Davidson committed "fraud upon the court," which is not subject to NRCP 60(b)(3)'s six-month limitations period.  Murphy v. Murphy, 103 Nev. 185, 186, 734 P.2d 738, 739 (1987).  Although true fraud on the court is rare and requires "egregious misconduct," Occhiuto v. Occhiuto, 97 Nev. 143, 146 n.2, 625 P.2d 568, 570 n.2 (1981) (quoting United States v. International Telephone & Tel. Corp., 349 F. Supp. 22, 29 (D. Conn. 1972)), the district court did not abuse its discretion in finding such fraud by Davidson here.  Nor were its findings that Davidson lacked authority and the Garners did not ratify the settlement clearly erroneous.  Finally, while the Hospital argues the Garners' motion was untimely because not made within six months of entry of judgment, it did not establish prejudicial delay."

Death Penalty Costs Examined

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The Death Penalty Information Center has released a new report - Smart on Crime: Reconsidering the Death Penalty in a Time of Economic Crisis.

From the Executive Summary of the report:

"Smart on Crime" is a new report from the Death Penalty Information Center that explores the prospect of saving states hundreds of millions of dollars by ending the death penalty. The report also serves to release a national poll of police chiefs in which they rank the death penalty at the bottom of their priorities for achieving a safer society.

The death penalty in the U.S. is an enormously expensive and wasteful program with no clear benefits. All of the studies on the cost of capital punishment conclude it is much more expensive than a system with life sentences as the maximum penalty. In a time of painful budget cutbacks, states are pouring money into a system that results in a declining number of death sentences and executions that are almost exclusively carried out in just one area of the country. As many states face further deficits, it is an appropriate time to consider whether maintaining the costly death penalty system is being smart on crime.

The nation's police chiefs rank the death penalty last in their priorities for effective crime reduction. The officers do not believe the death penalty acts as a deterrent to murder, and they rate it as one of most inefficient uses of taxpayer dollars in fighting crime. Criminologists concur that the death penalty does not effectively reduce the number of murders

Nevada Supreme Court issues 1 opinion

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Citizens for Cold Springs v. City of Reno -   "In this appeal, we examine whether citizens have standing to challenge a land annexation if they do not own the property subject to annexation.  Consistent with our prior holdings granting citizens the right to challenge land-use decisions and the language of NRS 268.668, we conclude that citizens may challenge an annexation even if the annexation does not include their property.  In this, we expand our ruling in Hantges v. City of Henderson, 121 Nev. 319, 113 P.3d 848 (2005), to grant citizens standing to challenge land annexations.  Our extension of Hantges is rooted in the plain language of NRS 268.668, which confers the right to seek judicial review to "any person" claiming to be adversely affected by an annexation.  We further use this opportunity to clarify the meaning of adverse effect in the context of NRS 268.668."

US Supreme Court calendar: October 13-14

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Via Scotusblog

Tues., Oct. 13:
Padilla v. Kentucky (08-651) -- effect of defense lawyer's wrong advice on consequences of a guilty plea
Smith v. Spisak (08-724) -- unanimity of jury as an issue in finding mitigating evidence in a capital case
South Carolina v. North Carolina (138 Original) -- participation of non-parties in Original cases

Wed., Oct. 14:

Alvarez v. Smith (08-351) -- right to court hearing to challenge forfeiture for a drug crime
Perdue v. Kenny A. (08-970) -- right of attorneys who win a case to receive higher fees

Treasure Island Corp. v. Duhon (Kelli)

            Las Vegas - 10:00 a.m. - Justices Parraguirre, Douglas, and Pickering

ISSUES: Should the district court have granted Treasure Island's motion for a directed verdict?  Was it proper for the district court to instruct the jury that Treasure Island could be liable under the "special use" doctrine?

Fernandez (Anthony) v. Fernandez (Jennifer)

            Las Vegas - 10:30 a.m. - Justices Parraguirre, Douglas, and Pickering

ISSUE: Did the district court abuse its discretion in refusing to modify the child support agreement?

Employers Insurance Company of Nevada v. Employco Services

            Las Vegas - 11:30 a.m. - Justices Parraguirre, Douglas, and Pickering

ISSUE: Had the statute of limitations expired by the time EICON filed its lawsuit against Employco?

Humphreys (Mark) v. State

            Las Vegas - 1:30 p.m. - Justices Parraguirre, Douglas, and Pickering

This is a case about Mark Humphreys' competency to stand trial.  Humphreys was convicted by a Clark County jury of making terrorist threats and aggravated stalking because of threats and harassing phone calls he made to various employees of the Hard Rock Hotel in Las Vegas.  Humphreys made over 2000 phone calls to various Hard Rock employees between December 2006 and April 2007.  Eventually, Humphreys threatened to kill one employee and to "blow up" the Hard Rock Hotel.  Before his arraignment and also before he was sentenced, Humphreys' competency was evaluated.  Following both evaluations, the district court judge determined that Humphreys was competent.  Humphreys is now appealing his judgment of conviction.  ISSUE: Did the district court correctly determine Humphreys' competency?


Diplomat Corp. v. Simon (Marvin)

            Las Vegas - 10:00 a.m. - Justices Parraguirre, Douglas, and Pickering

 ISSUES: Did the district court properly interpret the settlement agreement?  Are the Simons responsible for paying for future cleanup?  Is Diplomat entitled to recovery following the Simons' purported civil contempt? 

Easton Business Opportunities, Inc. v. Town Executive Suites

            Las Vegas - 10:30 a.m. - Justices Parraguirre, Douglas, and Pickering

 ISSUES: Did Easton have standing to sue Town?  Was Easton entitled to the commission?

Schuster (Donald) v. State

            Las Vegas - 11:30 a.m. - Justices Parraguirre, Douglas, and Pickering

This is an appeal of Donald Schuster's conviction by a Clark County jury for second-degree murder with the use of a deadly weapon and battery with the use of a deadly weapon.  In the underlying incident, Schuster and his brother got into a fistfight with four young men.  Schuster retrieved a gun and eventually fired it at the other men.  The first shot hit one man in the chest, which resulted in his death.  A second shot hit another man in the legs.  During his trial, Schuster requested that the district court give a jury instruction on involuntary manslaughter.  That motion was denied and Schuster is now appealing his conviction to the Supreme Court.  ISSUES: Did the district court err in refusing to give a jury instruction on involuntary manslaughter? 

Saylor (Jack) v. Arcotta (Karen)

            Las Vegas - 1:30 p.m. - Justices Parraguirre, Douglas, and Pickering

ISSUE: Did the district court err in dismissing Saylor's third-party complaint against the doctors? 

Cromer (Aaron) v. Wilson (William)

            Las Vegas - 2:00 p.m. - Justices Parraguirre, Douglas, and Pickering

Should Wilson have been allowed to argue that Cromer was partially at fault?  Could the jury properly find against Cromer's wife when it had found in Cromer's favor?  Was Cromer entitled to attorney fees and prejudgment interest?  

Wyman v. State - The defendant was convicted of second-degree murder for the 1974 killing of her son.  The Court rejects her challenge to the district court's order denying a motion to dismiss based upon pre-indictment delay.  The Court finds that the district court did not abuse its discretion in denying the motion because she failed to demonstate that she was prejudiced by the delay and did not prove that the State intentionally delayed filing the complain to gain a tactical advantage over her.

The Court grants relief, and reverses the conviction, however, based upon a finding that the district court abused its discretion in denying  her request for a certificate of materiality to obtain the out-of-state mental health records of the State's primary witness, under Nevada's Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings, codified in NRS 174.395 through 174.445.  The Court finds that the records were "material" because they had some logical connection with the facts of consequence of the issues presented in the case.  The error was not harmless under the facts of the case.

Webb v. Clark County School District - The Paul D. Coverdell Teach Protection Act of 2001 is an affirmative defense in a civil action involving a teacher and student.  The Court also finds that deamages for psychological services rendered in Nevada by a person who is not properly licensed in this state is not recoverable.

Today at 2:00 p.m., the Nevada Supreme Court, sitting en banc in Las Vegas, will conduct a hearing on ADKT 411, concerning performance standards and caseloads for counsel representing indigent defendants.  There are a relatively large number of reports from a variety of sources, but they do not appear to be available on the Court's website.  The Court informs me that the hearing will be webcast.  The link should appear on the Court's website shortly before 2:00 p.m.

Via Scotusblog:

Mon., Oct. 5:

Tues., Oct. 6:

  • United States v. Stevens (08-769) -- government power to criminalize videos and other depictions of animal cruelty
  • Johnson v. U.S.(08-6925) -- battery as a "violent felony" for sentence enhancement
  • Bloate v. U.S. (08-728) -- calculation of time of pre-trial stages under federal Speedy Trial Act

Wed., Oct. 7:

Rodriguez v. Primadonna Company

  In this appeal, we consider whether the district court properly entered summary judgment in favor of the respondent hotel corporations, dismissing appellant's negligence claim.  Appellant's claim was grounded, in part, on allegations that respondents' security personnel acted unreasonably when they evicted an intoxicated minor patron, who was injured in a motor vehicle accident.  We conclude that the eviction was reasonable as a matter of law.  We further conclude that Nevada's rejection of dram-shop liability applies to a claim for damages made by an intoxicated patron that occur after the patron is reasonably evicted.

Second, in this appeal, we are asked to review whether the district court properly denied respondents' motion for attorney fees and costs, which was grounded on an assertion that appellant's negligence action was frivolous.  According to respondents, the action was frivolous because it was barred by relevant legal authority.  Because appellant's claims are based upon a nonfrivolous argument for the extension of the law defining negligent eviction, we conclude that the district court properly denied respondents' motion for attorney fees and costs.

Finally, we are asked to determine whether a cross-claimant can maintain an implied indemnity claim when the underlying liability action is dismissed through summary judgment without a finding of fault against the proposed indemnitor.  Having considered persuasive authority from other jurisdictions, we conclude that a prerequisite to recovery on an implied indemnity claim is a finding that the third-party defendant is liable for damages to the plaintiff on the underlying claim.  Implied indemnity cannot be used to allow one innocent party to recover its defense costs from another innocent party.  Accordingly, the district court's dismissal of the third-party claim was ultimately proper because no right to implied indemnity exists for defense fees and costs when the district court has dismissed the underlying claim but has not determined the fault of the third-party defendant.

Delgado v. American Family Ins. Group

"We conclude that a passenger who is injured by two concurrently negligent drivers may recover from both the permissive driver's single insurance policy liability benefits based on the permissive driver's negligence and underinsured motorist benefits based on the other driver's underinsured status.  In so doing, we clarify that Peterson and Baker are not determinative on this issue.  The antistacking rule set forth in Peterson and Baker is not implicated when a passenger, whose injuries are attributable to two jointly negligent drivers, exhausts the liability limits of the permissive driver's policy without satisfying his or her damages, and seeks recovery under the permissive driver's underinsured motorist policy based on the other driver's underinsured status.  Accordingly, we reverse the district court's grant of summary judgment."

Ozawa v. Vision Airlines

"In these consolidated appeals, we consider two issues.  First, we are asked to recognize a new exception to the at-will employment doctrine and to allow a claim for tortious discharge related to an employee's termination for attempting to organize his fellow employees.  Because we conclude that the appellant had an available statutory remedy, we decline to recognize this claim for tortious discharge and we affirm the district court's order granting summary judgment on this claim.  Second, we review whether the district court abused its discretion in its resolution of respondents' request for attorney fees and costs.  Although we affirm the district court's denial of respondents' motion for attorney fees based on our conclusion that the district court properly weighed the relevant factors, we reverse in part the district court's costs award that attempts to provide compensation for a previously dismissed cause of action."

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This page is a archive of recent entries written by JoNell in October 2009.

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