Recently in Nevada Supreme Court Category

Cromer v. Wilson - "Appellant Aaron Cromer received a jury verdict of $4,530,785.50 as a result of injuries he sustained in a car crash caused by respondent William Wilson.  On appeal, Aaron and his wife Felicia Cromer raise several issues, only one of which merits detailed consideration.  The Cromers contend that the district court should have granted summary judgment on the issue of liability because NRS 41.133 allows a judgment of conviction to conclusively establish civil liability for a crime and should have precluded Wilson from arguing comparative fault pursuant to NRS 41.141.

            We conclude that the conclusive presumption of NRS 41.133 applies to liability but does not abrogate the law regarding comparative negligence or damages.  The district court should have granted the summary judgment motion as to liability and held a trial as to damages only; at such a trial, the defense could have introduced evidence of comparative fault, if any, to reduce the damages award.  In this case, the district court allowed the trial to proceed as to liability and damages.  The jury found Wilson liable and awarded damages.  Although the district court utilized the incorrect procedure, the appropriate outcome was reached.  Therefore, we affirm the judgment of the district court.  See, e.g., Sanchez v. Wal-Mart Stores, 125 Nev. ___, ___ n.2, 221 P.3d 1276, 1280 n.2 (2009) (noting that this court will affirm a district court's order if the district court reached the correct result, even for the wrong reason)."

San Juan (Elias) v. PSC Industrial Outsourcing,
Docket No. 50033
Carson City - 10:00 a.m. - Chief Justice Parraguirre and Justices Douglas and Pickering

This is a personal injury and workers' compensation case that arose from an explosion at DTI's plant that killed one employee and injured others.  The explosion occurred when inflammable gases from aerosol cans ignited.  DTI was hired by PSC Industrial Outsourcing to decant the aerosol cans.  The employees received workers' compensation benefits for their injuries even though DTI failed to make workers' compensation contributions.  In addition, the employees sued DTI, PSC, and others for their injuries.  The plaintiff argued that PSC owed the employees a duty that could not be delegated to anyone else because PSC contracted with DTI for the performance of inherently dangerous work.  PSC moved for summary judgment and the district court granted the motion.  ISSUES:  Did PSC owe the employees a duty that could not be delegated?  Does the general rule that workers' compensation benefits are the exclusive remedy for workplace injuries apply when DTI was not insured under the workers' compensation system? 

Gonski (Donald) v. District Court (PN II, Inc.),
Docket No. 53414
Carson City - 10:30 a.m. - Justices Hardesty, Douglas, and Pickering

This writ proceeding arises from a district court order compelling arbitration in a constructional defect matter in Washoe County.  Donald and Linda Gonski filed a lawsuit against the builder of their home, PN II, Inc., alleging constructional defects in the home.  The builder asked the district court to compel the parties to resolve their dispute through binding arbitration, which the builder argued is required by the home purchase agreement.  The Gonskis argued that, because the purchase agreement purported to incorporate a second arbitration clause pertaining to defects, but also referred to a statutory dispute resolution process, the purchase contract was unclear and confusing as to whether defect disputes must be arbitrated.  The Gonskis also argued that the purchase agreement failed to provide adequate notice that, by agreeing to arbitrate, important rights were being forfeited.  The district court granted the builder's request to compel the parties to participate in arbitration.  The Gonskis then filed this petition with the Nevada Supreme Court challenging the district court's order.  ISSUES:  Is arbitration of the Gonskis' case required by the parties' agreement? 

Docket No. 52510

Carson City - 11:30 a.m. - Justices Hardesty, Douglas, and Pickering

Randy Gamwell is appealing his conviction by a jury in Washoe County for burglary and first-degree kidnapping.  Before trial, a psychiatrist retained by Gamwell's counsel contacted the victim regarding an evaluation of Gamwell.  The prosecutor advised the victim not to speak to the psychiatrist.  Gamwell requested that the charges against him be dismissed because the prosecutor's advice violated Gamwell's right to interview witnesses.  The district court denied the request.  During closing argument, the prosecutor told the jury that the presumption of innocence no longer applied and referred to Gamwell's decision not to testify in his own defense.  After the jury returned its verdict, Gamwell moved for a judgment of acquittal on the kidnapping charge because it appeared that the jury based its verdict on the victim having suffered substantial bodily harm, although no jury instructions addressed that issue.  The district court also denied this motion.  ISSUES: Should the district court have granted the motion to dismiss because of the prosecutor's advice to the victim?  Did the State engage in prosecutorial misconduct during closing argument warranting reversal?  Should the district court have granted the motion for judgment of acquittal? 

Saylor v. Arcotta - "In this appeal, we clarify the applicable limitations periods for equitable indemnity and contribution claims.  In doing so, we conclude that claims for equitable indemnity are subject to the limitations period prescribed by NRS 11.190(2)(c), while claims for contribution are subject to the limitations period prescribed by NRS 17.285.  Because no judgment has been entered in the case at hand, and thus the applicable statutes of limitations have not yet begun to run, we reverse the district court's summary judgment as to appellants' third-party complaint for indemnity and contribution."

Schwartz v. Schwartz -   "We conclude that the district court abused its discretion in failing to conduct a full and proper analysis of whether lump-sum alimony was appropriate in this case and hold that a district court should assess not only age disparity as set forth in Daniel v. Baker, 106 Nev. 412, 794 P.2d 345 (1990), but should also assess whether the life expectancy of the payor makes the award illusory."

Coast to Coast Demo v. Real Equity Pursuit - "This is an appeal from a judgment entered by confession.  The appellants, who are the judgment debtors, acknowledged the debt but challenge the confession on statutory grounds and as unconscionable.  We affirm."

 

Ritter v. State - (Elko) - insufficient evidence to support the conviction of trafficking in a controlled substance.  It appears that the defendant was arrested on an outstanding warrant and was transported to the jail in a police car.  The next day, officers found a bag of methamphetamine in the police car, under the front seat.  The Court finds insufficient evidence after finding that there was no proof of actual possession, no proof of constructive possession, and abandonment. 

Bowser v. State - (Las Vegas) - reversal of a conviction for first-degree murder and other offenses based upon a bailiff's shotgun demonstration to the jury.  The bailiff did not inform the court or counsel for either party that the jury wanted a demonstration of a shotgun.  At the jury's request, the bailiff pumped the gun and fired it as fast as he could.  The bailiff later performed a similar presentation in the courtroom.  The Court found juror misconduct based upon the bailiff's actions and found the defendant was prejudiced. The Court rejects the defendant's claim that admission of statements to the police following invocation of Miranda rights warranted reversal.  At the time of his arrest he stated "you guys got me.  I'm going to make you work for it.  I'll see what my attorney can do for me."  The Court finds that the defendant did not unequivocally invoke his right to counsel.

Schuster v. State - (Las Vegas) - reversal of a conviction for second degree murder and other offenses based upon the district court's failure to give an instruction on involuntary manslaughter.

In a fourth case, Rudolpho v. State, the Court finds that a defendant should not have been convicted of both grand larceny and possession of stolen property.  The Court vacates the conviction for possession of stolen property but otherwise affirms the conviction.

Pyramid Lake Paiute Tribe v. Hugh Ricci, State Engineer,
Docket No. 51603
Carson City - 10:00 a.m. - Full court

This appeal arises from a dispute over water rights in Washoe County.  In 1980, Nevada Land and Resource Co., LLC (NLRC), received permits to appropriate groundwater from the Dodge Flat Hydrologic Basin for a mining and milling project. In 2000, NLRC applied to change the permit to use the groundwater to service a power generating plant.  The Pyramid Lake Paiute Tribe contested the applications on several grounds.  After the State Engineer granted the applications, the Tribe petitioned the district court for review of the ruling. The district court denied the petition, and the Tribe now appeals to the Supreme Court.  ISSUE: Does substantial evidence support the State Engineer's findings in granting the applications? 

In re: Nevada State Engineer Ruling No. 5823,
Docket No. 52963
Carson City - 10:30 a.m. - Full court

This case involves 27 consolidated groundwater applications for the Dayton Valley Hydrographic Basin in Lyon County.  The Pyramid Lake Paiute Tribe opposed the applications, contending that the groundwater use would ultimately decrease flow into the Pyramid Lake and adversely affect the Tribe's interests.  In Ruling No. 5823, the State Engineer granted all 27 applications.  The Tribe filed a petition for judicial review in the district court in Churchill County.  The Tribe was joined in the petition by Churchill County, which has surface rights in the Carson River that may be affected by changes to the Dayton Valley Hydrographic Basin.  The district court dismissed the petition for lack of subject matter jurisdiction, concluding that jurisdiction for review of a State Engineer's ruling is determined by the location of the applicant's water rights, which in this case is Lyon County.  The Tribe and Churchill County have appealed the district court's denial of their petition to the Supreme Court.  ISSUES:  Did the district court err in concluding that it did not have subject matter jurisdiction to hear the petition for review?  Should the district court have transferred the petition to Lyon County rather than dismiss it? 

Vanisi (Siaosi) v. State of Nevada (Death Penalty),

Docket No. 50607

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

This is Siaosi Vanisi's appeal from a district court order denying his post-conviction petition for a writ of habeas corpus in a death penalty case.  Vanisi was convicted by a Washoe County jury of first-degree murder, robbery with the use of a deadly weapon, two counts of robbery with a firearm, and grand larceny, for the 1998 murder of a UNR Police sergeant, and the subsequent theft of a car and robbery of two stores.  Vanisi previously appealed his convictions and death sentence, which were affirmed by the Nevada Supreme Court in 2001.  Vanisi then filed a petition for a writ of habeas corpus in the district court, arguing that his conviction was invalid for numerous reasons.  The district court denied the habeas corpus petition and Vanisi has appealed that decision to the Supreme Court.  ISSUES:  Does the jury's consideration of an invalid aggravating circumstance warrant a new penalty hearing?  Was Vanisi's trial counsel ineffective?  Was Vanisi's counsel for his appeal ineffective?  Did the district court err in finding Vanisi competent to proceed with his post-conviction petition? 

Mack (Darren) v. State of Nevada,

Docket No. 51143

Carson City - 10:30 a.m. - Full court (Justice Hardesty voluntarily recused himself from participation in this matter)

Darren Mack is appealing his convictions of first-degree murder and attempted murder with the use of a deadly weapon.  Mack pleaded guilty to first-degree murder for the killing of his estranged wife.  Mack also pleaded guilty to the shooting of the Washoe County Family Court Judge who was presiding over the couple's divorce, pursuant to North Carolina v. Alford, in which a defendant pleads guilty without actually admitting guilt.  Before he was sentenced, Mack requested that he be allowed to withdraw his guilty pleas, claiming that he did not fully understand the nature and consequences of the pleas.  This request was denied.  Mack was then sentenced to 20 years to life for first-degree murder, and 96 to 240 months for attempted murder, and a consecutive sentence of 96 to 240 months for the use of a deadly weapon.  ISSUES:  Should an understanding of lesser-included offenses be factored into determining whether a defendant's guilty plea is knowing and voluntary?  Should Nevada follow Rule 11 of the Federal Rules of Criminal Procedure, which governs pleas in federal courts?  

Reno Newspapers, Inc. v. Governor Jim Gibbons,

Docket No. 53360

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

This appeal arises from a dispute between Governor Jim Gibbons and the Reno Gazette-Journal (RGJ) over a request by the newspaper for some of the Governor's e-mails.  In 2008, the RGJ made a public records request for e-mails between Governor Gibbons and 10 people over a six-month time period.  In the event that the Governor objected to the request, the RGJ asked that it alternatively be provided with a log indicating, for each e-mail, the sender, all recipients, the message date, and the basis on which access was being denied.  The Governor denied the request, claiming that the requested e-mails were either privileged or not considered public records.  The RGJ filed a petition for a writ of mandamus in the district court, seeking access to the e-mails or the alternative log.  After a hearing and a review of the e-mails by the judge, the district court granted the writ as to six e-mails, and denied the writ as to the remaining e-mails.  The RGJ is now appealing the district court's decision.   ISSUES:  What is a public record for purposes of the Nevada Public Records Act?  Should the district court have ordered the Governor to produce the requested log rather than personally reviewing the e-mails and determining which e-mails should be provided? 

In Foster v. Dingwall, the Nevada Supreme Court clarifies the procedure set forth in Honeycutt v. Honeycutt, which concerns NRCP 60(b)(2) motions.  The filing of a notice of appeal does not toll the time for a NRCP 60(b) motion.

The Court also issued a second opinion in Foster v. Dingwall, which concerns the strikingo of a pleading as a discovery sanction and the burden of proof for an NRCP 55(b) prove-up hearing to establish a default.

The Court issued an opinion in NAIW v. Nevada Self-Insurers Association.  It addresses NRS 616C.110 and whether activities of daily living are proper considerations in workers' comp. actions.

 

I have a brief due today, so you're on your own for reading these.  If anyone sees anything with application to criminal cases, please let me know.

The Nevada Supreme Court has issued its third and fourth opinions of the year.  One opinion addresses a child support issue and the other addresses the law-of-the-case doctrine in the context of an insurance action and also addresses a choice-of-law issue.

Fernandez v. Fernandez - "This is an appeal by the father of minor children from an order denying a motion to modify child support under NRS 125B.145.  The trial court held that it was "not bound" by NRS 125B.145 because the parties "previously agreed in a stipulation and order modifying the Decree of Divorce that neither party [would] seek modification of child support."  In the trial court's view, this made the child support order nonmodifiable, so long as the father had "sufficient means (assets and/or income) to meet the agreed upon child support obligations."

            The motion to modify alleged that the father's monthly gross income had dropped more than 80 percent, to the point his child support obligation exceeded it.  The mother's circumstances, meanwhile, had improved to the extent that her assets and gross monthly income equaled or outmatched his.  Declining to apply NRS Chapter 125B's modification provisions to these facts was error.  Stipulated or not, the obligation the father sought to modify was incorporated and merged into the decree as an enforceable child support order.  State and federal statutes give child support orders super-legal reach.  Because children's needs and parents' circumstances can change unpredictably over the life of a child support order, NRS Chapter 125B provides for their periodic review and modification--up or down--as changed circumstances dictate.  The statutory scheme does not admit a child support order that cannot be modified based on a material change in circumstances.

            The father's motion presented facts that, if true, qualified for relief.  He did not need to wait until he was missing court-ordered child support payments or in financial peril before being heard under NRS 125B.145 and its related statutes, NRS 125B.070 and NRS 125B.080.  We therefore reverse and remand."

Dictor v. Creative Management -  " In this appeal, we consider two legal doctrines: first, the application of the law-of-the-case doctrine, and second, the proper choice-of-law analysis for defenses to the subrogation of underlying tort claims.

            When an appellate court explicitly or by necessary implication determines an issue, the law-of-the-case doctrine provides that the determination governs the same issue in subsequent proceedings in the same case.  Because our unpublished order in a previous appeal involving these same parties and stemming from the same lower court case narrowly addressed a single issue, we conclude that the district court did not violate the law-of-the-case doctrine and the district court was not precluded from applying the Missouri Property and Casualty Insurance Guaranty Association Act, Missouri Revised Statute section 375.772 (Mo. Rev. Stat. § 375.772), and other alternate legal defenses on remand.  We also affirm the district court's choice-of-law conclusion, that the Missouri statute barring tort claims against an insured of an insolvent insurer precludes appellant CPCI's subrogation claims." 

Great Basin Water Network v. State Eng'r: "In this appeal, we must determine a narrow, yet fundamental question: whether the State Engineer violated his statutory duty under NRS 533.370(2) by failing to rule on Southern Nevada Water Authority's (SNWA) 1989 water appropriation applications within one year.  NRS 533.370(2), as it existed in 1989, required the State Engineer to approve or reject each water appropriation application within one year after the final protest date.  The State Engineer, however, could postpone taking action beyond one year if he obtained written authorization from the applicant and protestants or if there was an ongoing water supply study or court action.  None of those conditions occurred by the end of 1991.  However, in 2003, the Legislature amended NRS 533.370 to permit the State Engineer to postpone action on pending applications made for a municipal use.  The district court summarily determined, among other issues, that the amendment applied to SNWA's 1989 applications, thus enabling the State Engineer to take action on applications filed 14 years earlier.

            The parties to this appeal dispute whether SNWA's 1989 applications were "pending" in 2003 under the legislative amendment and, therefore, whether the amendment applied retroactively to those applications.  We conclude that "pending" applications are those that were filed within one year prior to the enactment of the 2003 amendment.  And, in the absence of statutory language and legislative history demonstrating an intent that the amendment apply retroactively to SNWA's 1989 applications, we determine that the State Engineer could not take action on them under the 2003 amendment to NRS 533.370.

            Because we determine that the 1989 water appropriation applications were not pending in 2003, we conclude that the State Engineer violated his statutory duty by failing to take action within one year after the final protest date.  Thus, we reverse the order of the district court and remand for a determination of whether SNWA must file new groundwater appropriation applications or whether the State Engineer must re-notice SNWA's 1989 applications and reopen the period during which appellants may file protests."

Huesner (Allen) v. State, Docket No. 52023
Las Vegas- 10:00 a.m. - Justices Hardesty, Douglas, and Pickering.

The evidence presented at trial demonstrated that after Allen Heusner had been served with a temporary protective order, he broke into the home he shared with his wife, beat to death the man with whom his wife had been having an intimate relationship, and set a blanket on fire.  Heusner was convicted of first-degree murder, first-degree arson, and burglary while in possession of a deadly weapon.  Heusner raises numerous issues on appeal.    ISSUES:  Did the district court err in allowing the State to pursue a theory of felony murder with the predicate felony being burglary based upon entry with an intent to murder?  Did the district court abuse its discretion by admitting prior bad act evidence? Did the district court abuse its discretion when it instructed the jury that it did not have to be unanimous on the theory supporting the first-degree murder conviction? Did the admission of evidence of Heusner's post-arrest silence violate his Fifth Amendment right against self-incrimination? 

Love (Sherri) v. State, Docket No. 52403
Las Vegas- 10:30 a.m. - Justices Hardesty, Douglas, and Pickering

Sherri Love is appealing her conviction for murdering her 7-year-old daughter, attempting to murder her 8-year-old son, and abusing and neglecting her son by killing his sister in front of him and stabbing him in the hand.  This incident occurred in Clark County several days after Love left a detoxification program, where she was being treated for alcoholism and drug addiction.  ISSUES: Did the district court properly instruct the jury?

Polk (Levenral) v. State, Docket No. 52733
Las Vegas- 10:30 a.m. - Justices Hardesty, Douglas, and Pickering

This appeal challenges witness testimony, Nevada's deadly weapon enhancement, the district court's ability to dismiss an injured juror prior to consulting with the parties, and whether a juror who lost consciousness during trial should have been dismissed.   Levenral Polk is appealing his second conviction for murdering a long-time friend, by shooting him from a car.  Polk was initially convicted of first-degree murder, but was granted a new trial by a federal court.  At his second trial in Clark County, Polk was convicted of second-degree murder with the use of a deadly weapon and discharging a firearm out of a motor vehicle. ISSUES: Did the district court improperly permit a witness to offer hearsay evidence about forensic test results when that witness did not perform the forensic testing? Is the deadly weapon enhancement statute unconstitutional in light of the United States Supreme Court's decision in District of Columbia v. Heller?  Did the district court abuse its discretion by dismissing an injured juror prior to consulting the parties?  Did the district court err when it failed to dismiss a juror who lost consciousness during trial?