Nevada Supreme Court: September 2009 Archives

It's over 150 pages and I'm way too busy to summarize - so here you go:  Summary of 2009 Legislation

Oral argument calendar: Oct. 5

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Tiffany B. v. Slay (Ronald)

            Las Vegas - 10:00 a.m. - Full court

Rico-Arreola (Oscar) v. State

            Las Vegas - 10:30 a.m. - Full court

Madison Equities v. Hamika (Jerry)

            Las Vegas - 11:30 a.m. - Full court

 

Tiffany B. v. Slay (Ronald),

Docket No. 50419

Tiffany B. filed a lawsuit against polygraph examiner Ronald Slay, alleging negligence and various intentional torts.  During an earlier divorce and child custody case between Tiffany and her ex-husband, Malakai K., Tiffany alleged that her minor daughter, G.B., reported sexual abuse by Malakai.  Because Malakai had passed a prior polygraph examination regarding similar allegations by G.B., the district court judge asked Tiffany to take a polygraph examination to assess her credibility in making the allegations.  Slay was appointed to administer Tiffany's polygraph examination.  Slay accepted the appointment but did not disclose that he had administered Malakai's prior polygraph examination.  Slay determined that Tiffany's answers during her polygraph examination were deceptive.  As a result of her failed examination and a psychological assessment relying in part on the results of the examination, Tiffany lost physical custody of G.B. for more than a year.  After G.B. continued to report abuse by Malakai, further assessments and polygraph examinations (administered by examiners other than Slay) were completed and Tiffany was eventually awarded sole custody of G.B.  In the lawsuit against Slay, Tiffany claimed that Slay's prior examination of Malakai disqualified Slay from examining her, even if he had disclosed the conflict.  Tiffany also contended that Slay's examination of her was negligent and that providing her results to a third party after the family court proceeding without her permission violated NRS 648.197.  Slay moved to dismiss Tiffany's lawsuit on the basis that he is entitled to absolute quasi-judicial immunity.  The district court granted Slay's motion, and Tiffany now appeals the dismissal of her lawsuit.  ISSUES: Is a polygraph examiner entitled to absolute quasi-judicial immunity?  Does quasi-judicial immunity apply in instances of intentional torts?  (Disclaimer:  This synopsis is intended to provide only general information about this case before the Nevada Supreme Court.  It is not intended to be all inclusive or reflect all positions of the parties.)

Rico-Arreola (Oscar) v. State,

Docket No. 49512

Oscar Rico-Arreola was convicted by a Clark County jury of sexual assault of a child under the age of 14.  The district court sentenced Rico-Arreola to life in prison with the possibility of parole after 20 years.  During jury selection, the State exercised peremptory challenges with respect to two African-American jurors.  Rico-Arreola made a challenge under Batson v. Kentucky, arguing that the State engaged in discrimination in dismissing the two jurors.  The State responded that it excused the jurors because they were social workers and social workers were often not as favorable to the State in criminal cases.  Rico-Arreola is now appealing his conviction to the Supreme Court.  ISSUES:  Did the State violate the law established in the U.S. Supreme Court case of Batson v. Kentucky when it dismissed the prospective jurors?  (Disclaimer:  This synopsis is intended to provide only general information about this case before the Nevada Supreme Court.  It is not intended to be all inclusive or reflect all positions of the parties.)

Madison Equities v. Hamika (Jerry),

Docket No. 50316

This case involves a dispute over a lease extension for a convenience store at a shopping center in Clark County, specifically whether Madison Equities had a duty to respond to Jerry Hamika's premature notice to extend the lease. 

Nevada Supreme Court issues 4 opinions

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Attn: attorneys practicing criminal law - read this opinion!  It's a civil case but deals with criminal law issues.

In Flamingo Paradise Gaming v. Att'y General the Court considers a facial challenge to the constitutionality of Nevada's Clean Indoor Act.  The Court finds that the district court correctly ruled that under a facial challenge the statute is constitutional for civil enforcement but unconstitutionally vague for criminal enforcement.  "A statute containing a criminal penalty is facially vague when vagueness permeates the test of the statute, while a statute that involves only civil penalties is only facually vague if it is void in all its applications.

In Zana v. State, the Court considers whether testimony regarding prior bad acts is admissible when the resulting court proceedings were sealed or expunged.  The Court concludes that the district court may permit testimony that is confined to a witness's personal experiences so long as the witness does not rely on the previously sealed or expunged court proceedings and does not testify that such proceedings took place.  The Court next considers whether there was jury misconduct and concludes that the alleged misconduct did not prejudice the verdict.  During a weekend break in deliberations, a juror had engaged in an internet search for a particular pornographic website that was mentioned during the trial, but the juror was unable to locate the website.  He told the other jurors about his failed attempt at investigation.  The Court also considers whether the district court erred in denying a motion to sever lewdness courts from child pornography counts, and concludes that the district court did not abuse its discretion by denying the motion because evidence presented for each count was admissible for the other counts.

Argentena Consol. Mining Co. Jolley Urga - The Court concludes that absent an enforceable charging lien or the client's request or consent to the district court's adjudication of a retaining lien, the district court is without jurisdiction to adjudicate an attorney-client fee dispute in the underlying action.  It further concludes that when the client asserts legal malpractice as a defense against the attorney's claim for fees, it is particularly inappropriate to summarily adjudicate the fee dispute in the underlying action.  It instructs that when the district court lacks jurisdiction to adjudicate the fee dispute or the client objects to the court's adjudication of the dispute based on its legal malpractice claim against the attorney, the attorney seeking to recover fees should file a separate action to do so.

In re Estate of Miller - This appeal presents three narrow but previously undecided issues concerning offer of judgment practice under NRCP 68 and NRS 17.115.  Reversing, we hold that (1) a judgment obtained on or after appeal can qualify as a "more favorable judgment" for purposes of the fee-shifting provisions of NRCP 68 and NRS 17.115, (2) appellate fees are recoverable, and (3) an unrepresented party who serves an offer of judgment may recover fees later paid to a lawyer hired to prosecute or defend the case.  

 

 

Interesting unpublished decisions

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In an unpublished Order of Reversal and Remand in Monroe v. State, the Nevada Supreme Court finds that a the district court erred in refusing to conduct an evidentiary hearing on a suppression motion.  The five page order includes a nice summary of the law concerning automobile searches made pursuant to an investigatory stop.

In an unpublished Order Denying Petition in Bacon v. State, the Nevada Supreme Court finds that the proper person petitioner has filed numerous, arguably frivolous documents and finds that there has been a waste of judicial resources.  The Court cautions Bacon that he may forfeit all deductions of time earned as a prisoner.

McNight v. The Public Restroom Co. is a civil appeal in which the Court finds that in lacks jurisdiction.  The order is not interesting, but I like the name of the case.

In an unpublished Order of Reversal and Remand in Brunsen v. State, the Nevada Supreme Court finds that the district court erred in failing to conduct an evidentiary hearing on the defendant's presentence motion to withdraw his guilty plea and in failing to appoint conflict-free counsel for that hearing.

Nevada Supreme Court issues 3 opinions

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Sonia F. v. Dist. Ct. - The Court finds that Nevada's rape shield law, NRS 50.090, applies only to criminal proceedings and not civil cases.  The district court, however, may limit discovery of an alleged victim's sexual history in a civil case under NRCP 26

Bower v. Harrah's Laughlin - These consolidated appeals involve civil claims by hotel guests against Harrah's casino in Laughlin as the result of a brawl between the Hell's Angels and Mongols.  The appeals concern the issue preclusion doctrine under Nevada and federal law, rehearing of a summary judgment motion, intervening causes, and awards of attorney fees.

 

Dobron v. Bunch - This appeals concerns whether a guarantor of a loan may be held liable for attorney fees incurred by a lender in defending a usury action brought by borrowers.

The Court's last published opinion in a criminal case was issued on July 30, 2009.

 

In an unpublished order, Smith v. State, the Nevada Supreme Court finds that the district court abused its discretion in failing to appoint counsel to represent a petitioner for his post-conviction petition for a writ of habeas corpus.  This is a recurring problem in the Eighth Judicial District as Clark County judges seldom appoint counsel for post-conviction proceedings.  In contrast, counsel is routinely appointed in Washoe County and the rural counties.

Oral argument calendar: Sept. 10 & 11

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September 10, 2009, Oral Arguments

Certain Underwriters at Lloyds v. St. Paul Mercury Ins. Co.

            Carson City - 10:00 a.m. - Justices Cherry, Saitta, and Gibbons

Michael Hohl Valucar v. Coachmen R.V. Co.

            Carson City - 10:30 a.m. - Justices Cherry, Saitta, and Gibbons

Nevada Land and Resource Company v. Prize Energy Solutions

            Carson City - 11:30 a.m. - Justices Cherry, Saitta, and Gibbons

Hudler v. Anderson, Real Estate Division Administrator

            Carson City - 1:30 p.m. - Justices Cherry, Saitta, and Gibbons

Glenbrook Club v. Match Point Properties

            Carson City - 2:00 p.m. - Justices Hardesty, Cherry, and Saitta

A synopsis of each of these cases is available here.

September 11, 2009, Oral Arguments

Bodden (Karen) v. State

            Sparks High School - 9:50 a.m. - Justices Cherry, Saitta, and Gibbons

In 2008, Bodden was convicted by a Douglas County jury of first-degree murder with the use of a deadly weapon for the 2006 shooting death of her husband, Rob, and was sentenced to 20 years to life in prison.  Bodden filed a motion for a new trial in district court, claiming her home was searched through a faulty search warrant and evidence obtained should have been suppressed.  She also contended that testimony involving DNA should not have been allowed.  The district court denied her motion.  Bodden is appealing both her conviction and the denial of her motion for new trial.  ISSUES:  Did the district court err in failing to suppress evidence obtained as a result of search warrants executed at Bodden's residence?  Did the district court err in admitting testimony regarding the DNA profile of certain hair samples?  Did the State present sufficient evidence to support the jury's verdict?

IGT v. Wild Game NG, LLC (doing business as The Siena Hotel Spa and Casino)

            Sparks High School - 11:20 a.m. - Justices Cherry, Saitta, and Gibbons

A synopsis of IGT is available here.

 

This and That

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The Nevada Supreme will return another $2.5 million to the State General Fund.

Justice Saitta has been chosen for a fellowship as one of 40 emerging state leaders.

The Indigent Defense Commission will meet today from 10 to 2 at the Nevada Supreme Court chambers in Las Vegas and Carson City.

On Friday, the Nevada Supreme Court denied OJ Simpson's motion for bail pending appeal.

Chris Owens will now be the Assistant District Attorney for the Criminal Division.  Former ADA Christopher Lalli will rejoin the Major Violators Unit.

Scotusblog previews a Nevada case that will be heard by the United States Supreme Court this fall: McDaniel v. Brown.

In a couple of weeks there will be another shuffling of cases among some of the criminal judges in the 8th Judicial District.  Judges Bell and Silver will now handle criminal and civil cases.  Judge Mosley will be assigned fewer criminal cases and will now handle all misdemeanor appeals and foreclosure mediation appeals.  Some criminal cases will also be transferred from Judge Hardcastle.  Notices should be sent approximately one week prior to any court dates.

Oral argument audio recordings available

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Audio recordings are available for this week's oral arguments before the Nevada Supreme Court.

About this Archive

This page is a archive of entries in the Nevada Supreme Court category from September 2009.

Nevada Supreme Court: August 2009 is the previous archive.

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