Nevada Supreme Court: August 2010 Archives

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."