Nevada Supreme Court: May 2010 Archives

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.


The Nevada Supreme Court issued an unpublished order in Humbold County Public Defender v. Sixth Judicial District Court (Judge Wagner).  The Court grants a writ in part after finding that the judge was actually biased against the public defender.  After entering an order of recusal, the judge lacked authority to enter a second order in which he reclaimed future cases involving the attorney, from which he had already recused himself, and ordering that the attorney be removed from any cases assigned to the judge.

The unpublished order is available here.

The Court issued its last published opinion in a criminal case on January 14, 2010.  That case involved the publication of a previously unpublished order.  The last original opinion in a criminal case was issued on December 10, 2009.

For those interested in civil cases, here you go:

Easton Business Opportunities v. Town Executive Suites-Eastern Marketplace - "This dispute involves a commission claimed under an exclusive right-to-sell brokerage agreement for the sale of a business.  After a bench trial, the district court ruled in favor of the seller and against the broker's assignee.  It found the assignment ineffective and the commission unrecoverable, based on the broker's breach of an implied duty to have given the seller a list of the people to whom the broker had shown the business, to whom the seller could not sell during the extension period without incurring liability for a commission.  The agreement, as written, supports the opposite result and should have been upheld.  Upholding the commission claim makes it necessary to reach the assignee's fraudulent conveyance claims, as to which unresolved issues of fact remain.  Accordingly, we reverse and remand."

State, DMV v. Taylor-Caldwell - In this appeal, we confirm that a single test to determine the concentration of alcohol in a person's breath will require revocation of a driver's license.  We conclude that while NRS 484.386(1) requires that two consecutive samples of breath be taken to provide an evidentiary basis for the concentration of alcohol in a person's breath, NRS 484.384 does not require that the two consecutive samples be over the legal limit to mandate revocation; only one valid sample must be over the legal limit in order for the Department of Motor Vehicles (DMV) to revoke a driver's license.  The requirements in NRS 484.386(1) that two samples be taken and that the test results be within 0.02 of each other is merely an evidentiary requirement to validate the test.

In Re: T. L, A Child,
Docket No. 53959
Carson City
- 10:00 a.m. - Justices Cherry, Saitta and Gibbons

In this case, the State of Nevada is appealing a Washoe County district court decision not to certify a juvenile, who was seventeen years of age at the time of the alleged crime, as an adult.  The State filed a delinquency petition against the subject minor, T.L., charging him with battery with a deadly weapon.  T.L., who previously had been adjudicated as a delinquent child on a felony charge of maiming an animal, had been placed on probation on that charge and released in September of 2007, but fled and was not located until late January 2009.  He was served with the new delinquency petition the following month. The State then amended the petition to add another charge and sought to certify T.L. as an adult. The juvenile court determined that the certification motion was untimely under WDCR 33(1) and denied the motion on the merits.  The State now appeals.  ISSUES:  Did the juvenile court err in denying the State's motion for certification, which were based on T.L.'s personal traits, the allegations of serious and violent acts, and that T.L had posed a threat in the past?  Did the juvenile court err in determining that dismissal of the State's motion for certification was warranted due to its untimely filing in violation of due process and a local rule?

Manor Health Care Center, Inc. v. Monsour,
Docket No. 52796
Carson City
- 10:30 a.m. - Justices Cherry, Saitta and Gibbons

This is an appeal from a Clark County district court order confirming an arbitration award and entering a final judgment on the award in an elder abuse and wrongful death action. Edward Monsour died while in the care of Manor Health Care Center (MHCC). His estate and heirs sued MHCC for negligence, wrongful death, and statutory violations mandating that the facility provide considerate and respectful care to a vulnerable, elderly person. The parties entered binding arbitration, and the arbitrator found for Monsour's estate and heirs on all causes of action except the wrongful death claim. The arbitrator awarded compensatory damages to Monsour's estate, damages for personal injury and the pain and suffering of Monsour and his heirs, damages for loss of companionship, society, comfort, consortium, and grief and sorrow for Monsour's heirs, and attorney fees. The total damages amounted to $754,431,32. Monsour's estate moved to confirm the arbitration award, but MHCC moved to modify or correct the award.  Senior Judge Stephen Huffaker, the arbitrator, declined to modify the award. MHCC then moved the district court to modify or correct, or vacate the award, but the district court denied MHCC's motion and confirmed the award.  MHCC now appeals.  ISSUES:  Did the district court err when it confirmed the arbitration award and denied MHCC's motions to modify, correct, or vacate the arbitration award?  Did the arbitrator erroneously award damages to parties not entitled to recover under applicable law and impermissibly doubled certain awards of damages and attorney fees? 

Sims (Stanley) v. State,
Docket No. 52640
County High School - 9:45 a.m. - Justices Cherry, Saitta and Gibbons

Washoe County auto broker Stanley Sims is appealing his conviction for failing to pay several Arizona automobile dealerships for the cars they delivered to his customers. A grand jury indicted Sims on five counts of embezzlement. Sims filed a petition for habeas corpus, made several motions to dismiss the indictment, and sought to have the prosecutor disqualified, all of which were denied by the district court. Specifically, Sims sought to have the case dismissed on the basis that the prosecutor committed misconduct when he destroyed the grand jury record by retaining the exhibits, documents, and packets relied on by the grand jury; and ignored his obligation to present exculpatory evidence to the grand jury.  Sims made several pre-trial motions, attempting to dismiss the charge for inadequate notice, and urged the district court to determine essential jury instructions, all of which the district court denied.  However, the district court granted the State's request to amend the grand jury's indictment--striking factual language of Sims as a bailee, and the requirement of the intent to defraud. Sims entered a conditional guilty plea, and was sentenced to probation with the requirement that he pay restitution.  Sims retained his right to appeal and this appeal followed. ISSUES: Did the district court err by refusing to dismiss Sims' indictment due to prosecutorial misconduct? Does the alleged lack of a complete record prevent the prosecutor from justifying the indictment? Does the alleged lack of a complete record violate Sims' Sixth Amendment rights and undermine the grand jury's legal basis for the indictment? Did the district court err by refusing to disqualify the prosecutor?  Did the district court err in denying Sims' motion to dismiss for insufficient evidence?  Did the district court err by amending the indictment? Did the district court err by denying Sims' motion to determine essential jury instructions? Does cumulative error require reversal?

 Alford (Brian) v. State,
Docket No. 53415
County High School - 11:00 a.m. - Justice Michael Cherry

Brian Lamont Alford is appealing his conviction for first-degree murder with the use of a firearm in the death of Jerome Castro.  In the incident, Castro and Alford fought in Castro's Reno home and Alford used the butt of the gun he carried to beat Castro.  A single shot was fired that went through Castro's arm and struck him in the forehead, but did not penetrate or fracture his skull.  Castro later died from his injuries.  ISSUES:  Is the evidence sufficient to support Alford's conviction?  Did the district court abuse its discretion by giving certain jury instructions and admitting certain evidence?  Did the district court err in curtailing the cross-examination of key witnesses? Did the district court abuse its discretion in denying Alford's pretrial writ of habeas corpus?  Did the district court err in granting the State's motion to amend? Did the district court err in denying Alford's motion for a new trial?  Should Alford's conviction be reversed because of prosecutorial misconduct or under the doctrine of cumulative error? (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.)

Mitchell (David) v. State,
Docket No. 50305
Carson City
- 10:00 a.m. - Justices Cherry, Saitta and Gibbons

In this case, David Winfield Mitchell is appealing his conviction for murdering Sheila Jo Harris in 1982 in Carson City, Nevada.  Mitchell eluded charges for a quarter century until the advent of DNA testing provided evidence of his guilt.  Mitchell was convicted of first-degree murder with the use of a deadly weapon.  While that appeal was pending, the State filed a motion to correct the sentence, in which it argued that the district court had improperly sentenced Mitchell on the deadly weapon enhancement pursuant to sentencing guidelines in place at the time of conviction when it should have sentenced him pursuant to the guidelines in place at the time he committed the crime.  The district court granted the State's motion and filed an amended judgment of conviction in which it imposed an equal sentence of life without the possibility of parole for the deadly weapon enhancement as was required by statutes in place at the time Mitchell committed the crime. ISSUES:  Did the district court lack jurisdiction to resentence Mitchell while his appeal was pending?  Do the various other miscellaneous errors claimed by Mitchell warrant reversal of his conviction? 

Fraser (Ryan) v. State,
Docket No. 53675
Carson City
- 10:30 a.m. - Justices Cherry, Saitta and Gibbons

This case arises out of an incident where appellant Ryan Fraser digitally penetrated a four-year-old girl.  The victim then told numerous adults that Fraser sexually abused her, but her accounts of the abuse varied.  In relation to the victim, the State charged Fraser with two counts of sexual assault of a child under the age of 14 years.  Before trial, the Lyon district court found the victim competent to testify. The district court also ruled that the victim's out-of-court statements regarding the sexual abuse and testimony about a prior bad act were admissible. At trial, the victim testified that Fraser performed cunnilingus on her.  During cross-examination, she also confirmed that the State's lead prosecutor told her what to say during trial. In response to the witness tampering allegations, the district court permitted the prosecutor to testify.  Following trial, the jury convicted Fraser of one count of sexual assault for the digital penetration of a child. Fraser now appeals.  ISSUES:  Did the district court abuse its discretion by allowing the prosecutor to testify at trial?  Did the district court abuse its discretion by finding E.G. competent to testify? Did the district court violate Fraser's Sixth Amendment rights or abuse its discretion by admitting testimony about the victim's hearsay statements? Did the district court abuse its discretion by admitting evidence of an uncharged prior bad act of child sexual assault?

Schulz (Donald) v. Taylor (Tracy),
Docket No. 53731
Carson City
- 10:00 a.m. - Full Court

This is a groundwater rights case. The Schulz family sought to sell their groundwater rights to Carson City and applied to change the manner and place of use of their rights to facilitate the sale. When the State Engineer did not act on the application, the family filed a district court action and moved for partial summary judgment, declaratory relief, and a writ of mandamus. The district court denied summary judgment and declaratory relief, but granted the writ of mandamus, instructing the State Engineer to adjudicate the Schulz Family's claimed groundwater rights. The Schulz family now appeals.  ISSUES:  Did the district court err in determining that Nevada's groundwater forfeiture statute, NRS 534.090(1), is retroactively applicable to the family's claimed rights? Did the district court err in finding the forfeiture statute constitutional? Did the district court err by refusing to grant equitable relief? Did the district court err when it failed to resolve definitional ambiguities in the statute, or alternatively, to declare the statute void for vagueness?  Did the district court err in not applying issue preclusion?  Did the district court err in directing the State Engineer to conduct forfeiture proceedings? Does NRS 534.090(1) constitute a bill of attainder?

Orion Portfolio Services v. Co. of Clark (NRAP 5),
Docket No. 53969
Carson City
- 11:30 a.m. - Full Court

This appeal involves two certified questions, pursuant to NRAP 5, which arise from a lawsuit over University Medical Center of Southern Nevada's decision to sell certain health care accounts through a public auction.  UMC's invitation to bid at the auction contained a provision that if UMC determined not to sell an account that it initially intended to sell, it could substitute that account with an account of equal value.  However, UMC issued an addendum to its bid invitation, noting that no accounts would be replaced.  Ultimately, UMC accepted appellant Orion Portfolio Services' bid.  The parties entered into a purchase agreement that included a provision that allowed the parties to replace certain accounts.  After the parties finalized the contract, Orion asked UMC to substitute a number of accounts, under the agreement, but UMC refused.  Orion instituted a breach of contract action against UMC in federal district court and UMC moved for summary judgment, arguing that the parties' contract is void because it materially differs from the invitation to bid.  Orion opposed the motion and filed a countermotion for summary judgment, arguing Nevada's statute concerning a government entity's sale of personal property, NRS 332.185, does not require that a government entity conduct a public auction of personal property, but rather gives the government entity discretion to hold a public auction, thereby making Nevada's public bidding statutes, set forth in NRS Chapters 332 and 333, inapplicable.  Because the parties' arguments were questions of Nevada law that have never been addressed by the Nevada Supreme Court, the United States District Court certified two questions.  ISSUES:  When a local government entity sells property at a public auction, does NRS 332.185 require that entity to follow the public bidding rules outlined in NRS Chapters 332 and 333?  Is a contract obtained through a public auction and competitive bidding void when it materially differs from the contents of the invitation to bid? 

City of Reno v. Citizens for Cold Springs,

Docket No. 50301
Carson City
- 10:00 a.m. - Full Court

This appeal concerns the procedure that governing bodies may use to amend master plans and adopt zoning ordinances.  In this case, the City of Reno annexed vacant land in Cold Springs Valley after developers proposed large-scale projects for the area. The Reno Planning Commission then approved master-plan amendments and a zoning ordinance that changed the land use from primarily rural to urban classifications. After the commission approved these changes, the Reno City Council passed and adopted them. The City then submitted the master-plan amendments to the Washoe County Regional Planning Commission. Citizens for Cold Springs (consisting of taxpayers, residents, and property owners of the subject land) filed a lawsuit against the City and the district court ruled that the City violated Nevada law when adopting the zoning ordinance. The City now appeals. ISSUES:  Did the City violate the law by adopting master-plan amendments prior to the regional conformance review? Did the City violate the law by adopting a zoning ordinance that did not initially conform to the City's master plan? Did the City violate the law by failing to make a finding regarding water services and infrastructure prior to adopting the ordinance? Did the City violate the law because the ordinance does not promote the orderly development of land?

Wyeth v. Rowatt (Arlene),
Docket No. 51234
Carson City
- 10:30 a.m. - Full Court

This is an appeal of a jury verdict against a pharmaceutical company in favor of three women who claimed the company's hormone therapy drugs caused their breast cancer.  Respondents Arlene Rowatt, Jeraldine Scofield, and Pamela Forrester sued Wyeth in Washoe County district court alleging the drugs caused their breast cancer and that the warnings provided with the drug were inadequate.  The jury initially returned a verdict in favor of respondents for $134.6 million but then reduced the award to $134.1 million after re-instruction by the district court on damage awards. The district court remitted the amount of damages awarded but denied Wyeth's motion for a new trial and certified the jury award.  Wyeth now appeals.  ISSUES:  Did the district court err when it: (1) awarded punitive damages; (2) denied a new trial motion when the jury deliberated regarding punitive damages in phase 1 of the trial instead of waiting until phase 2 as instructed; (3) violated Wyeth's due process rights when it determined the amount of punitive damages awarded in this case, even after remittitur; (4) determined the amount of compensatory damages it ordered on remittitur; (5) gave a substantial cause instruction instead of a but for causation instruction; (6) gave a life expectancy jury instruction based on a mortality table; (7) applied Nevada law to two of the Plaintiffs' claims; (8) improperly allowed the use of Nevada law to punish conduct in Oregon and Washington in violation of the U.S. Constitution; (9) allowed the Plaintiffs' counsel to improperly argue before the jury by suggesting that the amount of damages could be based on the annual salaries of three of Wyeth's employee witnesses; (10) allowed Ms. Rowatt's claims, which were barred by the statute of limitations based on when she had notice of her injury and its cause; and (11) awarded attorney fees when it was reasonable for it to reject the offers of judgment based on prior results in related lawsuits. 

Rio All Suite Hotel & Casino v. Phillips (Kathryn),
Docket No. 53191
Carson City
- 11:30 a.m. - Full Court

This is an appeal from a Clark County district court order denying a petition for judicial review of an award of workers' compensation benefits. Appellant Rio All Suite Hotel & Casino (Rio) challenges the benefits award to its employee, respondent Kathryn Phillips, who worked as a dealer at the Rio. While on break, Phillips was descending the staircase that led to the break room when she injured her ankle. Rio's third-party administrator denied Phillips' workers' compensation claim.  A hearing officer affirmed that ruling, but an appeals officer reversed the denial of benefits. Rio filed a petition for judicial review, arguing that Phillips' injury did not arise out of her employment. The district court denied Rio's petition, affirming the appeals officer's order, and this appeal followed.  ISSUE:  Did Phillips' injury arise out of her employment as required by NRS 616C.150. 

About this Archive

This page is a archive of entries in the Nevada Supreme Court category from May 2010.

Nevada Supreme Court: April 2010 is the previous archive.

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