JoNell: December 2009 Archives

The Nevada Supreme Court will hear en banc arguments in Carson City on Tuesday, January 5.

Brebbia (John) v. Dist. Ct./Irsfeld (Hannah) v. Dist. Ct.,

Docket Nos. 53595/53487

Carson City - 10:00 a.m. - Full court

This case involves the application of the attorney-client privilege.  In an original  petition for a writ of mandamus or prohibition, attorneys are challenging district court orders requiring them to answer all deposition questions regarding their representation of former clients.  In the underlying case, Donald Allen sold his corporation, OHI, to Frontier Partners, but remained in his position as president of the corporation.  Allen then retained attorney Hannah Irsfeld to perform corporate work for OHI and to file a lawsuit against Frontier Partners and others on behalf of Allen and OHI for breach of contract and other claims.  In the litigation, Frontier sought to depose Irsfeld and another attorney, John Brebbia, claiming that OHI's new management waived any attorney-client privilege between Allen, OHI, and the attorneys.  Irsfeld, Brebbia, and Allen contend that all of their communication is protected by the attorney-client privilege.  After the district court in Clark County directed the attorneys to answer all deposition questions about their representation, the attorneys filed these writ petitions in the Supreme Court.  ISSUE:  Did the district court properly direct the attorneys to answer the deposition questions regarding their representation of Allen and OHI? 

American Sterling Bank v. Johnny Management,

Docket No. 52822

Carson City - 10:30 a.m. - Full court

This appeal concerns the priority of lien positions among different mortgage loan lenders for a single piece of property.  In May 2005, Jamal El Jwaidi and Kamila Zakoscielna purchased a home in Las Vegas with two loans from Steward Financial.  The first was for $2 million and received a first priority lien position, while the second was for $500,000 and received a second priority lien position.  In September 2005, the borrowers obtained a third loan, for $650,000, from Johnny Management LV, Inc.  The Johnny loan received a third priority lien position against the property.  Shortly before closing the Johnny loan, the borrowers initiated escrow to obtain a loan with American Sterling Bank for $805,000.  The American Sterling loan was intended to pay off the second Steward loan and to pay for other projects.  American Sterling intended to take the second priority lien position occupied by the second Steward loan and was unaware of the Johnny loan, which was recorded shortly before the American Sterling loan closed.  The Borrowers subsequently defaulted on the Johnny loan and Johnny recorded a notice of default and gave notice of its intention to sell the property.  American Sterling filed a motion in the district court requesting that the court stop the sale and declare American Sterling to have a second priority lien position in front of Johnny.  The district court denied the request to move American Sterling's lien position, but stopped the foreclosure sale pending the outcome of an appeal.  ISSUE:  Did the district court correctly determine the lien positions of the lenders? 

Marvin (Charles) v. State Board of Equalization,

Docket No. 52447

Carson City - 11:30 a.m. - Full court (Justice Pickering has voluntarily recused herself)

This appeal concerns whether the members of the State Board of Equalization have absolute immunity from a civil rights lawsuit.  In the underlying case, taxpayers appealed a decision of the Washoe County Board of Equalization on their assessed property values to the State Board of Equalization.  The State Board refused to equalize the property tax values in the manner the taxpayers requested.  The taxpayers subsequently filed a lawsuit against the State Board and its members, claiming that their civil rights were violated by the refusal to equalize the taxable value of their properties as requested.  The State Board and its members filed a motion to dismiss, asserting that absolute immunity bars the civil rights claims.  The district court granted the motion and dismissed the civil rights claims, and the taxpayers have appealed that decision to the Supreme Court.  ISSUE:  Are the State Board and its members entitled to absolute immunity from this civil rights lawsuit?

The Nevada Supreme Court will hold en banc oral arguments on Monday, January 4 in Carson City.

Betsinger (Steven) v. D.R. Horton, Inc.,

Docket No. 50510

Carson City - 10:00 a.m. - Full court

This case involves allegations of fraud and deceptive trade practices with respect to a deposit that was not returned when a mortgage loan was canceled.  In March 2003, Steve Betsinger signed a purchase contract with DHI Mortgage for a home in Las Vegas and paid an earnest deposit of $4,900.  When the parties disagreed about the applicable interest rate on the loan, Betsinger canceled the purchase contract.  The deposit was not returned.  Although the purchase contract provided that the earnest money would not be returned in the event of a cancellation, Betsinger testified that three DHI employees informed him that it would be returned.  Betsinger sued DHI and some of its employees for fraud and deceptive trade practices.  A jury awarded Betsinger approximately $58,000 in compensatory damages and $1.5 million in punitive damages. The district court later reduced the punitive damages to $300,000 pursuant to NRS 42.005, which caps the amount of punitive damages.  Both Betsinger and DHI have appealed the judgment.  ISSUES:  Is the cap on punitive damages constitutional?  Was it proper to award moving expenses to Betsinger?  Did the district court properly instruct the jury? 

Humboldt County Public Defender v. Dist. Ct. (Steve Cochran,

Docket No. 53460

Carson City - 11:30 a.m. - Full court

This is an original petition for a writ of mandamus and prohibition challenging the actions of District Judge Richard Wagner in the appointment of defense attorneys for criminal defendants.  Judge Wagner entered an order recusing himself in all cases involving Humboldt County Public Defender Matt Stermitz.  A few days later, Judge Wagner entered a second order removing Stermitz from certain criminal cases and appointing other defense counsel.  During the next few days, Judge Wagner reassigned three criminal cases from Stermitz to Steve Cochran, a Pershing County-based attorney.  Stermitz filed this writ petition, challenging Judge Wagner's orders.  ISSUE:  Were Judge Wagner's orders proper? 

PacifiCare of Nevada v. Griffiths (Alynne),

Docket No. 53789

Carson City - 1:30 p.m. - Full court

This case challenges a district court decision denying a motion to compel arbitration in a medical tort action.  Alynne Griffiths sued her health care provider, PacifiCare of Nevada, after she contracted Hepatitis C following treatment in a clinic recommended by PacifiCare.  PacifiCare filed a motion to compel arbitration, which the district court in Clark County denied. PacifiCare is now appealing that decision. ISSUE:  Did the district court properly deny the motion to compel arbitration?

The Nevada Supreme Court issued one decision today - Fields v. State.  The Court reverses a murder conviction based upon the trial court's abuse of discretion in admitting bad act evidence.

Via Scotusblog, the US Supreme Court issued four authored opinions this morning.

Beard v. Kindler Vacated and remanded.  Chief Justice Roberts authored the opinion of the Court; Justice Kennedy concurred, joined by Justice Thomas.  Justice Alito took no part.  The Court holds that a state procedural rule is not automatically "inadequate" under the adequate state ground doctrine, for federal habeas corpus petitions, because the state procedural rule is discretionary rather than mandatory.  The controlling question is whether the state rule is firmly established and regularly followed.

The opinion is here

Alvarez v. Smith : Vacated and remanded as moot.  Justice Breyer authored the opinion of the Court; Justice Stevens joined in part, filing an opinion concurring in part and dissenting in part (so the vote count is 8-1 on some parts).  The Court had granted certiorari on the issue of whether a state's failure to provide a speedy postseizure hearing, concerning forfeiture of movable personal property used to facilitate a drug crime, violated the federal due process clause.  The Court finds that the case is moot because the property disputes between the parties had been resolved.  The Court finds that the lower court judgment should be vacated.

The opinion is here.

Mohawk Industries v. Carpenter  Affirmed.  Justice Sotomayor delivered the opinion of the Court; Justice Thomas joined in part and filed a separate opinion concurring in part and concurring in the judgment. The Court holds that disclosure orders about the attorney-client privilege cannot qualify for immediate appeal under the collateral order doctrine.  An erroneous order compelling disclosure can be remedied by postjudgment review.  In other situations, a party may ask for an interlocutory appeal involving a controlling question of law, a party may seek a writ of mandamus, or the party may defy a disclosure order and incur court-imposed sanctions. 

The opinion is here.

Union Pacific Railroad Co. v. Brotherhood of Teamsters : Affirmed. Justice Ginsburg wrote for a unanimous Court.  The opinion deals with jurisdiction and the National Railroad Adjustment Board.  Scotusblog will have more details.

The opinion is here.


The Silver Pinyon Journal reports that the Nevada Supreme Court will hear argument in January concerning a dispute between Humboldt County Public Defender Matt Stermitz and 6th Judicial District Court Judge Richard Wagner.  The article indicates that the PD has accused the judge of improperly interfering with the PD's Office by improperly assigning to the office cases involving termination of parental rights and then removing the office from all cases assigned to the judge. 

Oral argument calendar: Dec. 9 and 10

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The Northern Panel of the Nevada Supreme Court (Justices Cherry, Saitta and Gibbons) will hold oral arguments on Wednesday and Thursday this week in Las Vegas:

ETT, Inc. v. Delgado (Juan), Wednesday 10:00 a.m.

Docket No. 46901

This is an appeal of district court decisions in a multimillion-dollar wrongful death case.  Darwin Ellison, a temporary employee (provided by Labor Express) of ETT, Inc., was driving a company truck on work-related business without a valid driver's license and while intoxicated when he struck and killed Rosa Delgado.  Juan Delgado, on behalf of Rosa's estate, filed a wrongful death action against ETT, Labor Express, and Ellison.  After a trial in Clark County, the jury returned a verdict in favor of Delgado and awarded more than $4 million in compensatory damages and $10 million in punitive damages. The jury apportioned fault at 75 percent to ETT and 25 percent to Ellison.   ETT subsequently filed a motion requesting, among other things, a new trial and a reduction in the punitive damages award.  The district court granted the motion to reduce punitive damages, and reduced the punitive damages to $4,183,250.50, but denied all other requests, including the motion for new trial. The district court also dismissed Delgado's claims against Labor Express.  ETT and Delgado have both appealed the amended order and judgment.  ISSUES:  Did the district court abuse its discretion in denying ETT's motion?  Did the district court abuse its discretion by reducing the jury's award of punitive damages? 

ESP Wireless Technologies, Inc. v. Fingl (Karen) Wednesday 10:30 a.m.,

Docket Nos. 50672/50835

This appeal involves a dispute over an employment contract and the awarding of attorney fees and costs after a trial.  Karen Fingl was employed by ESP Wireless Technologies.  As a condition of her employment, Fingl entered into a non-disclosure and non-competition agreement.  After three years of employment with ESP, Fingl was fired.  She then obtained employment with Anderson Communications, a competitor of ESP.  ESP and its president, Robert Barcal, sued Fingl and Anderson for breach of contract and numerous other claims.  A Clark County jury found neither party was liable.  However, the jury found that the non-competition provision of the agreement between ESP and Fingl was unenforceable because ESP had failed to demonstrate that Fingl's employment was terminated for a commercially reasonable reason.  Based on the jury's finding, the district court awarded Fingl attorney fees and costs, but in an amount less than requested by Fingl.  These fees and costs were enforceable against ESP only, not Barcal.  ESP, Barcal, and Fingl have all appealed the court's judgment.  ISSUES:  Did the district court abuse its discretion in its rulings on the attorney fees and costs?  Was the jury's verdict supported by substantial evidence? 

Bowser (Terrence) v. State of Nevada, Wednesday 11:30 a.m. 

Docket No. 50851

In this case, Terrence Bowser is appealing his conviction for a variety of crimes, including first-degree murder.  Evidence indicated that Bowser was driving when his passenger, Jamar Green, fired his gun at the victim's car, resulting in the victim's death.  Bowser was convicted in Clark County of one count each of conspiracy to commit murder, first-degree murder with the use of a deadly weapon, conspiracy to discharge a firearm out of a motor vehicle, discharging a firearm out of a motor vehicle, conspiracy to discharge a firearm at or into a structure or vehicle, and discharging a firearm at or into a structure or vehicle.  Bowser was sentenced to life imprisonment with the possibility of parole after 40 years.  ISSUES:  Did the district court abuse its discretion in admitting Bowser's statements to police when he had previously invoked his Miranda rights?  Did the State engage in prosecutorial misconduct?  Did the district court abuse its discretion in its evidentiary rulings? 

Gonzales (Luis) v. State of Nevada, Wednesday 1:30 p.m. 

Docket No. 51243

In this case, Luis Gonzales is appealing his conviction of first-degree murder with the use of a deadly weapon.  The evidence indicated that Gonzales, while intoxicated, got into a fight with the victim and shot and killed him.  Gonzales was found guilty of this charge by a Clark County jury and sentenced to life imprisonment.  ISSUES:  Did the district court abuse its discretion by admitting and/or instructing the jury regarding prior bad act evidence related to Gonzales?  Did the State present sufficient evidence to support the jury's verdict?

Hamler (Ronald) v. State of Nevada,  Thursday 10:00 a.m.

Docket No. 51562

Ronald Hamler is appealing his conviction by a Clark County jury for committing burglary while in possession of a deadly weapon, robbery with the use of a deadly weapon, and battery with the use of a deadly weapon.  The victim in the case claimed that Hamler forced his way into the victim's apartment, and took the victim's wallet and laptop computer.  After the victim grabbed a knife and demanded that Hamler leave the apartment, Hamler jumped on and hit the victim with a frying pan.  After the trial, Hamler filed a motion for a new trial, arguing that there was conflicting evidence.  The district court denied the motion.  ISSUES:  Are Hamler's robbery and battery convictions redundant?  Did the district court err in not allowing impeachment evidence against the victim?  Did the district court properly deny the motion for a new trial? 

Bass (Harriston) v. State of Nevada,  Thursday 10:30 a.m.

Docket Nos. 51822/53072

Harriston Bass, a doctor, is appealing his convictions for illegally dispensing large quantities of controlled substances to his patients.  One of his patients died from an overdose of prescription drugs.  Bass was convicted by a Clark County jury of one count of second-degree murder, 49 counts of sale of a controlled substance, and 6 counts of possession of a controlled substance for the purpose of sale.  The State presented evidence that while Bass was authorized to prescribe controlled substances, he did not have a license to dispense or sell the substances. Bass claimed that he was authorized to dispense/sell controlled substances and that the controlled substances that he provided to the deceased patient were not the proximate cause of her death. After his conviction, Bass filed a motion for a new trial, which was denied.  ISSUES:  Did the district court properly instruct the jury?  Are the statutes under which Bass was charged and convicted constitutional?  Were some of Bass's convictions redundant?  Did the district court properly deny Bass's motion for a new trial? 

Zhang (Lanlin) v. Reconstrust Co., Thursday 11:30 a.m.

Docket Nos. 52326/52835

This matter involves a dispute over an attempt to purchase a Las Vegas home and an award of costs resulting from subsequent litigation.  Lanlin Zhang entered into a contract to purchase Frank Sorichetti's home, but when a dispute arose over the purchase agreement, Zhang sued Sorichetti and recorded a lis pendens against the property.  After the district court ordered the lis pendens canceled, Zhang filed a writ petition in the Supreme Court.  The Supreme Court granted the writ petition in part and directed that the order canceling the lis pendens be vacated. As proceedings continued in the district court, Sorichetti sought a refinance loan on the property.  Prior to issuing the loan, National Title Company concluded that no cloud of title existed.  National Title, along with Reconstrust Company and Silver State Financial Services, Inc., then issued the loan to Sorichetti.  Sorichetti defaulted on the loan and foreclosure proceedings were begun.  After being informed of foreclosure proceedings, Zhang recorded a notice of fraudulent release of lis pendens and amended her complaint in the district court to assert claims against National Title, Reconstrust, and Silver State Financial, challenging the viability of the companies' deeds of trust and contending that her lis pendens should be given priority over those deeds of trust.  After a one-day bench trial, the district court determined that Zhang could purchase the property from Sorichetti, but that the companies' two deeds of trust must be satisfied before Zhang could do so.  The district court also ordered Zhang to pay the companies' costs of defending the lawsuit.  ISSUES:  Did the district court properly determine the priority of the lis pendens?  Should the district court have quieted title in Zhang's name?  Did the district court properly award costs to the companies? 

George (Donald) v. State of Nevada,  Thursday 1:30 p.m.

Docket Nos. 52807

In this case, Donald George is appealing his second conviction for multiple sex offenses involving a young girl who was living in his home more than two decades ago in Clark County.  George originally was convicted in 1985.  George attempted to file an appeal from that conviction, but the district court clerk failed to file and transmit the notice of appeal.  In 2006, the Supreme Court reversed George's 1985 conviction because the clerk's failure to file and transmit the notice deprived him of the opportunity to prosecute an appeal.  After a retrial, the jury found George guilty of sexual assault of a minor and lewdness with a minor.  George is now appealing that conviction.  ISSUES:  Did the district court abuse its discretion when it allowed two of the State's witnesses to testify as experts?  Are George's convictions for sexual assault and lewdness redundant?  Was the evidence sufficient to support George's conviction?  


The US Supreme Court has issued two recent per curiam decisions: one today and one last week.

In Michigan v. Fisher, the Court finds that police officers acted reasonably in entering a home without a warrant based upon their belief that there was a need to render emergency assistance.  The failure to call for emergency medical assistance was not determinative because officers needed to assure that the person was not endangering someone else in the house as they had observed violent behavior inside.  Justice Stevens and Sotomayor dissented.

In Porter v. McCollum, the Court finds that trial counsel was ineffective for failing to investigate and present evidence of post-traumatic stress disorder during a capital penalty phase.  In the unanimous pc opinion, the Court noted that "Our Nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did."  This is a must read for those defending capital cases.

This morning the US Supreme Court granted certiorari in two cases.  In Christian Legal Society v. Martin the Court will decide whether it is unconstitutional for a state-run college (Hastings Law School) to exclude from official status a student religious group that limits its officers and voting members to those who accept its religious beliefs.  In Dillon v. U.S., the Court will consider whether the Court's 2005 ruling in U.S. v. Booker, which made the federal sentencing guidelines advisory rather than mandatory, applies to sentence modification proceedings.

The briefs in these cases and today's order list are available via Scotusblog.

In Ouanbengboune v. State, a three justice panel (Chief Justice Hardesty and Justices Parraguirre and Douglas), finds that an inaccurate translation made during trial by a court-appointed interpreter did not warrant the grant of a new trial upon finding that the defendant was not prejudiced by the inaccuracies. The Court sets forth the procedures for addressing this type of issue when the erroneous translation is discovered post-trial.   The Court also finds that the trial court did not commit plain error in failing to instruct the jury on afterthought robbery.

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

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