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Oral Argument Calendar: Sept. 2

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Saavedra-Sandoval v. Wal-Mart Stores, Inc.,

Docket No. 53693

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

This personal injury appeal involves process-service issues.  In the underlying case, appellant Gabriela Saavedra-Sandoval filed suit against respondent Wal-Mart Stores, Inc., after allegedly slipping and falling while shopping.  Saavedra-Sandoval subsequently served the summons and complaint upon a co-manager at the store where the incident occurred. Wal-Mart claims that its registered agent was never properly served and that it did not receive notice of the lawsuit until more than one year after the complaint was filed. Saavedra-Sandoval moved the Clark County district court for an enlargement of time to effect proper service over one year after the expiration of NRCP 4(i)'s 120-day period for serving the summons and complaint. Wal-Mart filed a countermotion to dismiss for insufficient service of process. The district court denied Saavedra-Sandoval's motion and granted Wal-Mart's countermotion to dismiss, finding that Saavedra-Sandoval failed to properly serve Wal-Mart within 120 days and did not demonstrate good cause for the delay. ISSUES: (1) Did Wal-Mart waived the defense of insufficient service of process?  (2) Should this court revisit its decision in Scrimer v. Dist. Ct., 116 Nev. 507, 998 P.2d 1190 (2000), in light of the fact that NRCP 4(i) was amended in 2004? (2) Did the district court abuse its discretion in determining that Saavedra-Sandoval failed to demonstrate good cause for failing to serve Wal-Mart's registered agent within 120 days. 

Las Vegas Sands, Inc. v. Suen,

Docket No. 53163

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

This is an appeal and cross-appeal from a jury verdict on an unjust enrichment claim that arose out of international business transactions between appellants Las Vegas Sands, Inc. (LVSI), Sheldon Adelson, and William Weidner and respondent Richard Suen. LVSI owns an assortment of casino and hotel operations. Adelson is the Chairman and Chief Executive Officer of LVSI and Weidner was LVSI's President. Suen conducts business in Hong Kong, Macau, and the People's Republic of China (PRC). He contacted Adelson after Macau announced that it intended to end its government-sanctioned monopoly of gaming. Suen told Adelson that he and his business associates had government connections in Macau and the PRC that could help LVSI obtain a Macau gaming license. After the parties met, Suen and his business associates arranged meetings in Beijing between Adelson, Weidner, and high-ranking government officials from the PRC. At one such meeting in Beijing, Adelson discussed his desire to build a resort in Macau and a Vice Premier of the PRC invited Adelson to make a bid for a gaming license. Adelson also assisted the Mayor of Beijing during this trip by speaking to Congressman Tom DeLay about a resolution pending in the United States House of Representatives. Following these successful meetings, Suen exchanged faxes with LVSI regarding compensation for his services. Weidner offered to pay a success fee to Suen and his group if LVSI obtained a Macau gaming license. Suen attempted to accept this offer on behalf of respondent Round Square Company Limited. Although Suen is one of two principals for Round Square, none of the other group members helping LVSI obtain a gaming license were associated with this entity.  ISSUES: (1) Did the district court err because Suen lacked standing allowing him to recover in quantum meruit for the efforts of his associates? (2) Did the district court err by failing to exclude the procurement deal as an offer to compromise? (3) Did substantial evidence support the jury's verdict that Suen performed valuable services for LVSI, (4) Did the district court err by admitting a statement with layers of hearsay (5) Did the district court err in refusing to instruct the jury on the presumptions of governmental regularity? (6) Did the district court err by granting summary judgment to LVSI on the fraud and breach of contract claims? 

Carstarphen v. Milsner,

Docket No. 51631

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

This appeal presents a rather unique procedural issue involving NRCP 41(e)'s five-year mandatory dismissal rule. In the underlying proceedings in Washoe County, the district court the district court twice granted appellant, the plaintiff below, John Carstarphen's motion to toll NRCP 41(e)'s five-year period for bringing the case to trial, based on a prior order entered in response to the parties' stipulation.  That order "stay[ed] any motions or any decision on pending motions, as well as formal discovery proceedings, until further stipulation of the parties, or order of the Court." Of note here, both the stipulation and stay order were silent as to the expiration of the NRCP 41(e) period. Moreover, neither party brought to the district court's attention this court's decision in Prostack v. Lowden, 96 Nev. 230, 606 P.2d 1099 (1980), which held that despite an order granting a continuance of a trial beyond the five-year period, dismissal under the five-year rule was mandatory because the parties' stipulation for the continuance was silent as to the expiration of the five-year limit and the district court judge was not made aware of the five-year rule issue.  In this case, after the five-year period had expired, respondent moved the district court to dismiss the action, arguing the Prostack holding for the first time. Based on Prostack, the district court dismissed the action. This appeal followed. ISSUE: (1) Did the district court err in dismissing the action?  (2) Should this court adopt a rule that the running of the NRCP 41(e) five-year prescriptive period is tolled during a court-ordered stay of pretrial discovery and motion practice (3) What standard of review governs a district court's consideration of a motion to set a preferential trial date that seeks to have trial begin before the NRCP 41(e) five-year period expires and, under the circumstances of this case, did the district court improperly deny appellant's motion for a preferential trial date. 

Oral Argument Calendar: Sept. 1

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Ybarra (Robert) v. State of Nevada,

Docket No. 52167

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

Robert Ybarra was convicted of first-degree murder, battery with the intent to commit a sexual assault, and sexual assault in White Pine County.  This court affirmed the judgment of conviction and death sentence.  Thereafter, Ybarra unsuccessfully sought post-conviction relief four times.  In this, his fourth post-conviction petition, Ybarra claimed that he was mentally retarded and therefore not subject to the death penalty under Atkins v. Virginia.  Initially, the district court denied the petition as procedurally barred, but on appeal this court determined that the district court erred by dismissing the claim and remanded the matter for appropriate proceedings.  On remand, the district court considered additional pleadings, conducted an evidentiary hearing, and rejected Ybarra's mental retardation claim on the merits.  This appeal followed.  ISSUES:  (1) Did the district court err by concluding that Ybarra was not mentally retarded (2) Did the denial of Ybarra's motion to recuse the district court judge violate his state and federal right to due process.

Hardy Companies, Inc. v. SNMARK, LLC,

Docket No. 52758

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

This mechanic's lien dispute centers around the attempt by appellant W.E. O'Neil Construction Company of California and its subcontractor appellant Hardy Companies, Inc., to foreclose mechanics' liens on property owned by respondent SNMARK, LLC.  O'Neil had contracted with lessee Wickes Furniture to build out a large commercial space in a shopping center owned by SNMARK.  Neither O'Neil nor Hardy served pre-lien notices on SNMARK.  However, SNMARK knew about and was involved with the construction.  The district court in Clark County determined none of the lien claimants served SNMARK with a pre-lien notice, as required by NRS 108.245.  The district court granted SNMARK's motion to expunge the mechanics' liens and granted summary judgment.  This appeal followed.  ISSUES:  (1) Was O'Neil excused from serving pre-lien notice because it was the prime contractor and contracted directly with the owner? (2) Did SNMARK's actual notice negate the need to serve the property owner with a pre-lien notice? (3) Has the actual knowledge exception from Fondren v. K/L Complex, Ltd., 106 Nev. 705, 800 P.2d 719 (1990) been overruled by subsequent legislative amendments? (4) Is SNMARK estopped from invoking the pre-lien statute because it is not a disinterested owner? 

Lawrence v. Clark,

Docket No. 54165

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

This matter involves land that was held and administered by the Colorado River Commission (CRC), an executive agency of the State of Nevada.  Pursuant to the Fort Mohave Valley Development Law (FMVDL), the CRC administered thousands of acres in the Fort Mohave Valley, which is part of the Colorado River basin in Clark County, Nevada.  In 2007, the Legislature substantially revived the FMVDL. The revision was primarily concerned with transferring public lands from the CRC to Clark County. The revised FMVDL ordered the CRC and the Nevada State Land Registrar to convey all the land once administered by the CRC to Clark County. The CRC executed a deed to Clark County for all of the land--the Registrar did not. It deeded most of the land but refused to deed over a small portion of land that lies just adjacent to the Colorado River (the Disputed Land).  Respondent Clark County filed a complaint for declaratory relief seeking to have the district court order appellant James R. Lawrence, in his official capacity as the Nevada State Land Registrar, to convey the Disputed Land. The Registrar filed a counterclaim, requesting a declaration that the Disputed Land was subject to the public trust doctrine and therefore inalienable. The district court granted the County's motion for judgment on the pleadings, and the Registrar appealed. ISSUE: Did the district court err when it granted the County's motion for judgment of the pleadings?

Nevada Supreme Court issues 3 opinions

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In Vega v. State, the Court addresses three issues:

"First, we consider whether appellant Bernardo Vega's constitutional right to confrontation under the Confrontation Clause, Crawford v. Washington, 541 U.S. 36 (2004), and Melendez-Diaz v. Massachusetts, 557 U.S. ­___, 129 S. Ct. 2527 (2009), was violated.  We conclude that Vega's constitutional right to confrontation was violated when the district court erroneously admitted the testimonial statements from an unavailable expert witness without the witness previously being subjected to cross-examination.  However, we conclude that the error did not affect Vega's substantial rights and did not amount to plain error because the testifying expert offered her own opinions independent of those of the unavailable expert witness.

            Second, we consider whether the district court properly admitted evidence that the child victim made two suicide attempts during the time period when she was subjected to sexual abuse.  Vega asserts that this evidence was irrelevant and intended to appeal to the emotions of the jury.  We disagree.  The State introduced evidence regarding the victim's suicide attempts to demonstrate that Vega had subjected the victim to ongoing and repetitive sexual abuse, and to show the effect and harm the abuse had on the victim.  Therefore, we conclude that it was not manifest error for the district court to admit this evidence.

            Third, Vega challenges the sufficiency of the evidence to convict him on counts 4, 5, and 9 of sexual assault with a minor under the age of 14 because the record does not show that the child victim was under the age of 14 at the time of the sexual assaults.  We conclude that based on the evidence presented at trial, a rational jury could have reasonably determined that the victim was under the age of 14 at the time the sexual assaults charged in counts 4 and 5 occurred, but not when the sexual assault charged in count 9 occurred.  Thus, we conclude that there was sufficient evidence to support Vega's convictions on counts 4 and 5, but that there was insufficient evidence to support his conviction on count 9."

Schiff v. Winchell -  "In this appeal, we consider whether the district court erred in determining that the date of the original judgment on a jury verdict, rather than the date of an amended judgment entered on remand, was the appropriate date for determining the rate of prejudgment interest.  We conclude that the district court did not err and that the appropriate date for determining prejudgment interest is the date the original judgment was entered."

George L. Brown Insurance Agency v. Star Insurance Co. -  "In this appeal, we consider what approach Nevada should adopt in interpreting indemnity provisions in insurance contracts when an indemnitee seeks to be indemnified on claims arising out of the indemnitee's own negligence.  We conclude that Nevada should adopt the majority rule regarding indemnification; therefore, the contract must expressly or explicitly reference the indemnitee's own negligence before an indemnitee may be indemnified for his or her own negligence.  Consequently, we conclude that the district court erred in granting summary judgment in favor of respondents Star Insurance Company, Meadowbrook, Inc., and Meadowbrook of Nevada, Inc. (collectively, Star), because there are genuine issues of material fact concerning fault that must be decided before the indemnification clause at issue here may be enforced."

 

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."

I'm back from vacation, and I finished my latest brief, so postings will now resume.  Sorry for the delay.

The Nevada Supreme Court issued a decision today in Buckwalter v. Eighth Juidicial District Court.  In a decision authored by Justice Pickering, and joined by Justice Hardesty and Justice Douglas, the Court denied a petition for a writ in a medical malpractice action. 

The Court holds that the district court did not err in denying a motion to dismiss that was based upon the argument that an expert witness provided a declaration in the face of a statute that required an expert's affidavit.  The Court relies upon NRS 53.045 in fidning that a declaration that is sworn under penalty perjury is sufficient.

The Court finds that consideration of the writ is appropriate because the issue presented is not fact-bound and involves an unsettled and potentially significant, recurring question of law.

It's one of my cases, so I'm not going to say much.  The opinion is Polk v. State.  It addresses the State's failure to address a constitutional issue in its Answering Brief and the admission of expert testimony in violation of Melendez-Diaz and Crawford.

Marvin v. Fitch - absolute immunity for individual members of the State Board of Equalization.

Betsinger v. D.R. Horton, Inc. - deceptive trade practices

Thomas v. Hardwick - preservation of issues for appeal, spoliation, habit evidence, voir dire, "recall bias"

The Court has issued only one opinion in a criminal case this year.  Higgs v. State, which the was publication of a previously issued Order of Affirmance, was issued on January 14, 2010.  The Court issued its last original opinion in a criminal case on December 10, 2009.