Harmfulerror

US Supreme Court issues 1 decision, grants cert. in 2 criminal cases

Mon, 15 Nov 2010 08:19:02 -0800

This morning the Court issued an opinion in Abbott v. United States and Gould v. United States. The Court held that a federal defendant is subject to the highest mandatory minimum specified for his conduct in 18 USC 924(c) unless another statute directed to conducted prohibited by 924(c) specifically imposes a greater mandatory minimum sentence. The opinion was authored by Justice Ginsburg for a unanimous court.

The Court granted certiorari in Tolentino v. New York. The case concerns the Exclusionary Rule and DMV records.

The Court also granted certiorari in Fowler v. United States. The case concerns the federal death penalty and whether the Government presented sufficient evidence that the defendant committed murder with the intent to prevent a person from communicating information about a federal offense to a federal law enforcement officer or judge of the United States.

Briefs and lower court opinions are available at Scotusblog.

Oral Argument Calendar: Nov. 10

Wed, 10 Nov 2010 10:35:49 -0800

Lopez (Eduardo) v. Nevada Dept. of Corrections,
Docket No. 54174
Carson City - 10:00 a.m. - Justices Cherry, Saitta, and Gibbons
This is an appeal from a Carson City district court order granting a motion to dismiss an inmate's lawsuit for failure to exhaust administrative remedies. Eduardo Lopez, an inmate at the Ely State Prison, brought a tort action alleging that the Nevada Department of Corrections (NDOC) was negligent in failing to follow its policies and procedures by housing Lopez with a known enemy, Jeffery Troxel. Lopez allegedly sustained injuries caused by Troxel during an altercation in their shared cell on June 29, 2006. According to NDOC's inmate grievance procedure, an inmate must initiate an informal grievance involving personal injury within six months of when the claim arises. Lopez filed an informal inmate grievance on March 10, 2007, more than six months after the alleged claim arose. The NDOC rejected the grievance as being untimely. Lopez filed a first-level grievance on April 2, 2007, and it also was rejected as being untimely. Lopez never filed a second-level grievance. Lopez filed a civil complaint against the NDOC in the district court on June 24, 2008. The district court dismissed Lopez's lawsuit on the basis that Lopez failed to exhaust administrative remedies prior to initiating a state tort action. Lopez appeals. ISSUES: Did the district court err in granting the NDOC's motion to dismiss due to Lopez's failure to exhaust administrative remedies? Does NRS 209.243(1) violate equal protection by restricting a prisoner's right to file a personal injury administrative claim within six months of the date of the injury, while non-prisoners may file such an action within two years of the injury? Is the precedent set forth in Turner v. Staggs, 89 Nev. 230, 510 P.2d 879 (1973), still controlling law in Nevada?

Goodlow (Deljuan) v. State of Nevada,
Docket No. 54198
Carson City - 10:30 a.m. - Justices Cherry, Saitta, and Gibbons
This is Deljuan Goodlow's appeal of his judgment of conviction, entered after a Washoe County jury found him guilty, for first-degree murder with the use of a deadly weapon, home invasion, and burglary. The underlying incident began when Carolyn Van Loock and Royce Riley were staying at the Lido Inn in Reno during a trip from California and witnessed two men arguing. After seeing a gun, they went inside their motel room. Frank Smith and Deljuan Goodlow broke the couple's motel room window, attempted to kick down the door, and shot Riley, while Van Loock hid in the bathroom. Riley died from a gunshot wound to the chest. Security cameras from a neighboring property recorded some of the incident. Smith and Goodlow fled from the Lido Inn in a black car. Police searched for the black car and eventually found it, although no one was inside. Officers saw blood both inside and outside the car and then found Goodlow nearby, with cuts on his arm and the keys to the car in his possession. The police arrested Goodlow and showed him the surveillance video that recorded the incident. Goodlow admitted that he was in the recording. Over Goodlow's objection, the district court ruled that his case and Smith's should be tried together. During jury selection, the district court judge commented on the "horrible" crimes and referred to notorious historical figures. When Goodlow moved for a mistrial due to the statements, the district court denied the motion. The defendants also objected, under Batson v. Kentucky, to the State's use of peremptory challenges to exclude potential minority jurors, but the district court denied the defendants' objection. After a seven-day trial, the jury convicted Goodlow, and the district court sentenced him to consecutive sentences of life in prison without the possibility of parole. ISSUES: Did the district court abuse its discretion in joining Goodlow's and Smith's cases? Do the district court judge's comments during jury selection require this court to reverse Goodlow's conviction? Did the State's use of peremptory challenges to exclude potential minority jurors during jury selection violate Batson v. Kentucky? Was there sufficient evidence to support Goodlow's convictions for burglary and first-degree murder?

Kamalaudeen (Mohamed) v. State of Nevada,
Docket No. 53067
Carson City - 11:30 p.m. - Justices Cherry, Saitta, and Gibbons
This is Mohamed Kamalaudeen's appeal of his judgment of conviction, entered after a Washoe County jury found him guilty, for murder and solicitation to commit murder for the killing of University of Nevada, Reno, professor Judy Calder. Kamalaudeen was sentenced to life in prison without the possibility of parole for murder, a consecutive term of 5 to 20 years for a deadly weapon enhancement, and 4 to 15 years in prison for solicitation to commit murder. ISSUES: Should the public defender's office have been disqualified from representing Kamalaudeen because it represented one of the State's witnesses in an unrelated case? Did the district court err by admitting gruesome autopsy photographs? Was Kamalaudeen's sentence for the deadly weapon enhancement correct? (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.)

Smith (Frank) v. State of Nevada,
Docket No. 54234
Carson City - 2:00 p.m. - Justices Cherry, Saitta, and Gibbons
In this case, Frank Smith is appealing his judgment of conviction, entered after a Washoe County jury found him guilty, for first-degree murder with the use of a deadly weapon, home invasion, and burglary. The underlying incident began when Carolyn Van Loock and Royce Riley were staying at the Lido Inn in Reno during a trip from California and witnessed two men arguing. After seeing a gun, they went inside their motel room. Frank Smith and Deljuan Goodlow broke the couple's motel room window, attempted to kick down the door, and shot Riley, while Van Loock hid in the bathroom. Riley died from a gunshot wound to the chest. Security cameras from a neighboring property recorded some of the incident. Smith and Goodlow fled from the Lido Inn in a black car. Police searched for the black car and eventually found it, although no one was inside. Officers saw blood both inside and outside the car and located Goodlow nearby, with cuts on his arm and the keys to the car in his possession. After the police arrested him, Goodlow identified Smith as being involved. Smith was eventually extradited from California. During the seven-day joint trial, Goodlow testified on his own behalf, while Smith chose to remain silent. A jury convicted both men of first-degree murder, home invasion, and burglary. The district court sentenced Smith to life in prison without the possibility of parole, plus an equal consecutive term for the use of a deadly weapon. Smith now appeals. ISSUES: Did the district court err by failing to sever Smith's trial? Does Smith's conviction rest on insufficient evidence? Should this court overrule its prior opinion in State v. District Court (Pullin), 124 Nev. 564, 188 P.3d 1079 (2008)?

Nevada Supreme Court issues 1 civil decision

Thu, 04 Nov 2010 11:18:28 -0800

In Schuck v. Signature Flight Support, a 3-judge panel (Justices Hardesty, Douglas and Pickering), issues a decision, authored by Justice Pickering, which affirms the grant of summary judgment in a case involving damage to an airplane. The Court also finds that the district court erred in awarding the plaintiff's original lawyers, who withdrew, judgment for unpaid fees and costs.

This is the Court's 42nd opinion of the year.

Nevada Supreme Court issues 1 opinion: real property

Thu, 28 Oct 2010 10:15:12 -0800

In American Sterling Bank v. Johnny Mgmt. LV, the Nevada Supreme Court, in an en banc opinion authored by Justice Hardesty, addresses application of the doctrine of equitable subrogation where a refinancing mortgage's due date was accelerated. The Court summarizes the case and its holding:

"We have previously adopted the rule in Restatement (Third) of Property: Mortgages, section 7.6, that a lender whose loan proceeds were used to pay the balance of a prior note is equitably subrogated to the former lender's priority lien position so long as an intervening lienholder is not materially prejudiced. Houston v. Bank of America, 119 Nev. 485, 490, 78 P.3d 71, 74 (2003). The Restatement reasons that holders of intervening interests cannot complain about the application of the equitable subrogation doctrine because the intervening lienholder is "no worse off than before the senior obligation was discharged." Restatement (Third) of Prop.: Mortgages § 7.6 cmt. a (1997).

In this appeal, we consider whether an intervening lienholder suffers an injustice or prejudice precluding equitable subrogation where the terms, including the maturity date, of the refinancing loan are materially different than the terms and maturity date of the senior obligation. We conclude that material differences in interest rates and payment terms do not cause prejudice to the intervening lienholder because equitable subrogation generally limits the paying lender's priority to the amount and terms of the retired senior obligation. However, a materially accelerated maturity date for the paying lender's loan can, and did in this case, prejudice the intervening lienholder, precluding equitable subrogation. We therefore affirm."

Oral Argument Calendar: Nov. 5

Thu, 28 Oct 2010 08:21:33 -0800

State of Nevada v. Lucero (Arthur),

Docket No. 54375

Carson City - 9:30 a.m. - Justices Hardesty, Douglas, and Pickering

This is an appeal from a district court order denying the State's motion to correct what it argues is an illegal sentence that reduced a drug trafficker's prison term from 10 years to life, to 2 to 15 years. Arthur Lucero pleaded guilty to trafficking in a controlled substance and was sentenced to a term of 120 months to life in prison, pursuant to NRS 453.3385(3). The district court subsequently suspended Lucero's sentence and placed him on probation pursuant to NRS 453.3405, which allows a district court to reduce or suspend the sentence of a person found guilty of trafficking if it finds that the person has provided substantial assistant in the investigation or prosecution of any offense. Subsequently, the district court revoked Lucero's probation and modified his sentence to a term of 24 to 180 months in prison. The State filed a motion to correct an illegal sentence, arguing that the modification resulted in a sentence that was less than the range provided by NRS 453.3385(3). The district court denied the motion and the State has appealed that decision. ISSUE: Did the district court err by denying the State's motion to correct an illegal sentence?

Oral Argument Calendar: Nov. 4

Thu, 28 Oct 2010 08:20:00 -0800

State v. Huebler (Charles),

Docket No. 50953

Reno High School - 9:30 a.m. - Full Court (Justice Saitta disqualified)

This is an appeal from a Washoe County district court order granting Charles Huebler's post-conviction petition for a writ of habeas corpus. Huebler was convicted in the district court, pursuant to a guilty plea, of one count of lewdness with a child under the age of 14. He was sentenced to life in prison with parole eligibility after 10 years. While Huebler did not file a direct appeal of his conviction, he did file a post-conviction petition for a writ of habeas corpus. In his petition, Huebler argued that his right to due process was violated because the State failed to disclose evidence favorable to his defense, which the prosecution has a duty to do under the United States Supreme Court case Brady v. Maryland, 373 U.S. 83 (1963). The district court granted Huebler's petition, and the State is now appealing that decision. ISSUES: Did the district court err in determining that Huebler had established a claim pursuant to Brady v. Maryland?

LeMans Corp. v. Provenza (Joseph),

Docket No. 51026

Reno High School - 10:30 a.m. - Full Court (Justice Saitta disqualified)

This appeal and cross-appeal in a products liability case arose from a motocross motorcycle accident that caused severe burns to over 90 percent of Joseph Provenza's body. The appeals are from a multimillion dollar judgment and a post-judgment order denying a new trial. LeMans Corporation manufactured the clothing Joseph was wearing at the time of the crash. Joseph and his parents, Michael and Kim Provenza, sued several related Yamaha companies, which manufactured and distributed the motocross motorcycle Joseph was riding. The Provenzas also sued LeMans because, the Provenzas contended, the LeMans clothing exacerbated Joseph's injuries. In the early months of litigation, Michael Provenza and agents of the Provenzas' trial counsel deliberately altered and destroyed portions of the motocross motorcycle. When Yamaha's experts attempted to inspect the motorcycle, they discovered the alterations. As a sanction, the district court dismissed claims against Yamaha. However, the district court denied a similar motion to dismiss filed by LeMans, and the case proceeded to trial. A jury returned a verdict against LeMans for approximately $41 million in damages, plus approximately $10 million in prejudgment interest. The district court modified the judgment to exclude prejudgment interest for the reasonable value of medical services that the Provenzas had obtained for free from Shriners Hospital. LeMans now appeals the judgment against it, and the Provenzas have filed a cross-appeal challenging the modification of the judgment. ISSUES: Did the district court err in failing to dismiss the action against LeMans? Did the district court abuse its discretion in denying a new trial? Did the district court err in amending the judgment to delete prejudgment interest on one element of the Provenzas' damages?

Oral Argument Calendar: Nov. 2

Thu, 28 Oct 2010 08:17:22 -0800

Marrs (Shirley) v. Schiff (Dr. Steven),

Docket No. 53601

Carson City - 10:00 a.m. - Full Court (Justice Hardesty disqualified)

This is an appeal from a Washoe County district court judgment in a medical malpractice action, which alleged that doctors diagnosed and treated a woman for metastatic bone cancer that she did not have. In May 2000, Shirley Marrs was informed by respondents Steven Schiff, M.D., and John Shields, M.D., that she had terminal metastatic bone cancer. Marrs received continuous treatment until January 2003, which she alleges caused her significant emotional and physical distress. Marrs resumed treatment with another medical provider who informed her in September 2004 that she, in fact, did not have metastatic bone cancer. In September 2005, Marrs filed a complaint against respondents alleging that they misdiagnosed her and then followed up with unnecessary treatment. Marrs further alleged that respondents concealed their misdiagnosis during the course of treatment. At trial, the district court granted respondents' motion for judgment as a matter of law on the grounds that Marrs's complaint was filed too late under NRS 41A.097(1), which provides that an action for injury against a health care provider may not be commenced more than four years after the date of injury. Subsequently, Marrs moved to have the district court judge who presided over the trial disqualified for bias. Another district court judge denied the motion to disqualify. ISSUES: Did the district court err in concluding that Marrs's complaint was time-barred? Should the time for filing a complaint have been extended due to respondents' alleged concealment of their negligence? Did the second judge err by failing to disqualify the trial judge?

Southern California Edison v. Dist. Ct. (Dept. of Taxation),

Docket No. 55228

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

In this original petition for a writ of mandamus, the Supreme Court is being asked to determine the standard of review a district court should apply in reviewing refund decisions of the Nevada Tax Commission. Southern California Edison filed several claims with the Nevada Department of Taxation for refunds of use taxes Edison paid between 1998 and 2000. The Department denied Edison's claims and Edison appealed to the Nevada Tax Commission. Ultimately, the Commission denied Edison's claims. Edison then filed a complaint in district court pursuant to NRS 372.680, which allows for an independent action to be brought in district court against the Department after a final decision is rendered by the Commission. Such an action would be reviewed by the district court de novo, that is, without deference to the Commission's decision. The Department filed a motion to dismiss Edison's complaint, arguing that recent amendments to the pertinent statutes have altered the refund procedure and that the proper vehicle for challenging the Commission's decision is a petition for judicial review pursuant to NRS 233B.130. Such a petition would be reviewed by the district court under a substantial evidence standard, which would require the district court to give more deference to the Commission's decision. The district court ordered that the matter should proceed as a petition for judicial review. The district court proceeding has been postponed until the Supreme Court decides the petition for writ of mandamus. ISSUE: Did legislation alter the practice for use tax refund claims to allow only petitions for judicial review?

Guy (Curtis) v. State of Nevada (Death Penalty),

Docket No. 50350

Carson City - 1:00 p.m. - Full Court (Justices Douglas and Cherry disqualified)

This is Curtis Guy's appeal from a district court order denying his post-conviction petition for a writ of habeas corpus in a death penalty case. Guy was convicted by a Clark County jury of first-degree murder in the death of Ceasor Evans stemming from a dispute over cocaine. Guy previously appealed his conviction and death sentence, which were affirmed by the Nevada Supreme Court. Guy 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 Guy has appealed that decision. ISSUES: Was Guy's trial counsel ineffective, warranting a new trial? Did the district court err in finding that the jury's consideration of two invalid aggravators was harmless beyond a reasonable doubt? Did the district court properly deny Guy's claim of cumulative error?

Nevada Supreme Court affirms OJ Simpson's conviction & grants his co-defendant a new trial

Fri, 22 Oct 2010 10:36:14 -0800

In a 24-page unpublished Order of Affirmance, the Nevada Supreme Court affirms the judgment of conviction against O.J. Simpson. The Court rejects Simpson's claims of a Batson violation, judicial misconduct, prosecutorial misconduct, limitation on the right of confrontation, hearsay violation, and redundancy of the deadly weapons enhancements. The Court also finds that the district court properly instructed the jury on robbery and conspiracy and that there was sufficient evidence to support the conviction.

In a separate Order of Reversal and Remand, the Court grants a new trial to Simpson's co-defendant Clarence Stewart.The Court found that the district court abused its discretion in failing to sever Stewart's trial from Simpson's trial.

Both decisions were issued by Justices Cherry, Saitta and Gibbons.

US Supreme Court grants cert in 1 case: immunity for unlawful detention

Tue, 19 Oct 2010 09:00:52 -0800

The case is Ashcroft v. al-Kidd. Scotusblog has the details at the link.

Nevada Supreme Court issues 2 opinions

Tue, 19 Oct 2010 08:22:02 -0800

In re Candelaria - In an en banc opinion authored by Chief Justice Parraguirre, with dissents by Justices Cherry and Saitta, the Court explains its rationale for its previously issued decision concerning the 5 year period applicable to those seek election as a justice of the peace: "In this appeal, we are asked to define the eligibility requirements set forth in NRS 4.010(2)(a) for justice of the peace. Based on the statute's plain and unambiguous language, we conclude that, before being elected or appointed to a justice of the peace position, an attorney must be licensed to practice law for a minimum of five calendar years, which are typically 365-day years, from the date of his or her admission. After expedited briefing and argument, we summarily affirmed the district court's order granting the petition to remove the candidate for justice of the peace from the ballot, as she did not meet the minimum five-year requirement. This opinion sets forth the full reasoning that underlies our disposition."

Orion Portfolio Servs. 2 v. Clark County - In an en banc opinion, authored by Justice Douglas, the Court addresses the following: "The United States District Court for the District of Nevada has certified two questions to this court, pursuant to NRAP 5. Although we accept the federal court's certified questions, we reframe them to better reflect the factual circumstances of the federal case and, accordingly, answer the following questions. When a local government entity sells property using the competitive bidding process, does NRS 332.185 require the government to follow public bidding rules outlined in Chapter 332? And, under Nevada law, is a contract obtained through competitive bidding void when it materially differs from the contents of the invitation to bid?

We conclude that the answer to both questions is yes. If a public entity chooses to sell property by competitive bidding, it must follow the rules set forth in NRS Chapter 332. And a contract obtained through competitive bidding is void if it materially differs from the contents of the invitation to bid."

Oral Argument Calendar: Oct. 13

Wed, 13 Oct 2010 08:03:57 -0800

The Nevada Supreme Court will hear 5 oral arguments today:

Lord v. Chew,

Docket No. 49969

Las Vegas-10:00 a.m. - Justices Hardesty, Douglas and Pickering

This is an appeal from a Clark County district court order in a tort action. Appellant Robert Lord was severely injured while participating in a high-tech scavenger hunt in Las Vegas. Lord was rendered a blind quadriplegic when he fell approximately 30 feet head-first down an abandoned mine shaft. Lord and his wife, appellant Jacqueline Deerr-Lord, filed suit against settling defendants Joe Belfiore, Kristina Belfiore, Kevin Shields, Walter Smith, Scott Schell, and Argentena Consolidating Mining Co., and proceeded to trial against the only non-settling defendant, respondent Chee Chew. The Lords appeal the jury's defense verdict in favor of Chew. ISSUES: (1) Whether the district court erred in refusing various jury instructions related to vicarious liability; (2) Whether the district court erred in failing to hold the pre-injury release of liability unenforceable as a matter of law; (3) Whether the district court erred in awarding Chew attorney fees and costs; and (4) Whether judicial misconduct requires reversal.

Bell v. American Family Mutual Ins.,

Docket Nos. 50162 and 54090

Las Vegas-10:30 a.m. - Justices Hardesty, Douglas and Pickering

Appellant Maulidi Bell was injured in an auto accident with Andre Bailey, whom respondent American Family insured. Bell obtained a $1,000,000 default judgment against Bailey in a Clark County District Court in excess of the $15,000 / $30,000 policy limits, the whole of which he seeks to collect from American Family. ISSUES: (1) Whether the third party appellant's counterclaims were barred by the doctrine of claim or issue preclusion based on a prior judge's ruling in a separate case, such that the district court properly reversed its earlier order allowing the third party to proceed in the insurer's action for declaratory relief (2) Whether a third-party claimant may bring a direct action for bad faith against an insurer, after obtaining a judgment against the insured, thus allowing the third-party to recover punitive damages in excess of the insurance policy limits, and (3) Whether Nevada allows an injured party, after securing a judgment against an insured tortfeasor, to execute on the judgment and acquire then assert the tortfeasor's first party cause of action for bad faith.

Fanders v. Riverside Resort and Casino,

Docket No. 51225

Las Vegas-11:30 a.m. - Justices Hardesty, Douglas and Pickering

Appellant Juana Fanders was employed as a guest room attendant at the Riverside Resort & Casino in Laughlin, Nevada. On the day that she quit her job at Riverside, and before leaving the casino premises, Fanders was escorted to Riverside's security office where casino security guards allegedly assaulted and wrongfully imprisoned her. Fanders filed a civil action against the security guards and Riverside (collectively respondents) alleging assault and battery, wrongful imprisonment, and negligence. The Clark County district court granted summary judgment to respondents, ruling that Fanders' sole remedy was provided by the Nevada Industrial Insurance Act (NIIA). ISSUES: (1) Whether Fanders was an employee at the time she was injured, (2) Whether genuine issues of material fact exist as to whether Fanders' injuries arose out of and in the course of her employment, and (3) Whether workers' compensation is Fanders' only recourse on her intentional tort claims against her former co-employees or against her former employer?

Stephans (Stuard) v. State of Nevada,

Docket No. 52254

Las Vegas-1:30 p.m. - Justices Hardesty, Douglas and Pickering

Appellant Stuard Stephans and his codefendant were apprehended outside of a retail store after they were observed stealing three bottles of Ezra Fitch cologne each. Stephans now challenges a Clark County judgment of conviction, pursuant to a jury verdict, of one count each of burglary, grand larceny, and conspiracy to commit larceny. At trial the State attempted to prove the value of each cologne bottle through the testimony of the store security guard, who testified that he knew the price of the cologne based on the price tag on the bottle. ISSUES: (1) Whether sufficient evidence was adduced at trial to support Stephans' conviction for grand larceny, (2) Whether the store security guard's testimony regarding the price of the bottle of cologne was inadmissible hearsay, (3) Whether the district court erred by rejecting Stephans' proposed jury instruction, which advised the jury that "[t]he mere fact that two people are committing the same type of crime at the same location is insufficient in and of itself to prove a conspiracy." (4) Whether the district court erred by failing to dismiss a juror for cause, and (5) Whether the district court erred by limiting Stephans' counsel's questioning of potential jurors.

Sparks v. Alpha Tau Omega Fraternity,

Docket No. 50668

Las Vegas-2:00 p.m. - Justices Hardesty, Douglas and Pickering

This appeal arises from an altercation that occurred during a tailgate at a football game between the University of Nevada, Reno (UNR) and the University of Nevada, Las Vegas (UNLV). Various persons from UNR and UNLV associated with Alpha Tau Omega Fraternity (ATO) attended a tailgate in an area reserved by the UNR Alumni Association and in which ATO served free alcohol. Several ATO members and non-ATO members, including Jeffrey Clack (non-ATO), left that area and wandered into another tailgate section where the car of appellants Roy and Andrea Sparks was located. The Sparks returned to their car to find Clack and a few other guys leaning on it. Andrea asked them to leave, and then Roy approached and also asked them to leave. Suddenly, an altercation broke out, during which Clack bit off the end of Roy's nose. The Sparks filed suit against Clack and various university, alumni, and ATO entities alleging negligence; assault and battery; intentional infliction of emotional distress; negligent infliction of emotional distress; negligent hiring, training, supervision, and retention; misrepresentation; and false imprisonment. The Sparks entered into a settlement agreement with the university defendants. The alumni defendants filed a motion to dismiss, which the district court granted. The ATO defendants filed a motion for summary judgment, which the district court also granted. Appellants appeal both orders of the district court. ISSUES: (1) Whether the district court erred in granting the Alumni respondents' motion to dismiss on the ground that appellants did not exercise reasonable diligence in determining the identity of the true defendants; (2) Whether the district court's failure to comply with NRCP 56(c) in granting the ATO respondents' motion for summary judgment warrants reversal; (3) Whether the ATO respondents' motion for summary judgment was procedurally deficient; (4) Whether there is a genuine issue of material fact regarding whether the ATO respondents were negligent; (5) Whether there is a genuine issue of material fact regarding whether the ATO respondents are liable for negligent infliction of emotional distress; and (6) Whether there is a genuine issue of material fact regarding whether the ATO respondents are liable for the intentional torts committed by Jeffrey Clack against Sparks.

Nevada Supreme Court Oral argument Calendar: October 12

Tue, 12 Oct 2010 07:54:05 -0800

Gruber (Deborah) v. Shvachko (Natalia),

Docket No. 50758

Adelson Educational Campus (Las Vegas) -9:30 a.m. - Justices Cherry, Saitta, and Gibbons

This is an appeal from a Clark County summary judgment in a declaratory relief action regarding the proceeds of a trust, and from post-judgment orders denying NRCP 60(b) relief and awarding attorney fees and costs. Respondent Natalia Shvachko married Charles (Chic) Kotick in Las Vegas, Nevada. During their marriage, Kotick executed a trust and designated Shvachko as its primary beneficiary. The trust also stated that the three children of appellant Deborah Gruber, who is Kotick's daughter from a former marriage, would become the primary beneficiaries if Shvachko was not married to and living with Kotick at the time of his death. Kotick died approximately five years after marrying Shvachko; Shvachko was married to and living with Kotick when he died. After Kotick died, Gruber filed a lawsuit requesting that the district court annul Shvachko's marriage to Kotick. Gruber argued that the marriage was void because Shvachko was already married to a man from Ukraine when she married Kotick, and that Shvachko induced Kotick into marrying her with fraud. Shvachko answered Gruber's lawsuit and moved for summary judgment. For the summary judgment motion, Shvachko produced a divorce certificate and an apostille from Ukraine. Gruber responded by arguing that the summary judgment motion was premature because she had not yet conducted discovery. Despite this argument, the district court granted summary judgment and sanctioned Gruber by awarding attorney fees and costs to Shvachko. Gruber then requested a stay pending the appeal of the summary judgment and order granting attorney fees and costs. Following a hearing, the district court denied Gruber's motion and ordered Gruber to pay Shvachko's attorney fees and costs. Gruber then filed a motion under NRCP 60(b) to set aside the summary judgment. After conducting another hearing, the district court denied this motion and ordered Gruber to pay Shvachko's attorney fees and costs. Gruber now appeals from the summary judgment and post-judgment orders denying NRCP 60(b) relief and awarding attorney fees and costs. ISSUES: (1) Did the district court err by granting Shvachko's motion for summary judgment? (2) Did the district court abuse its discretion by denying Gruber's request for a continuance to allow discovery? (3) Did the district court abuse its discretion by denying Gruber's motion under NRCP 60(b) to set aside the summary judgment? (4) Did the district court abuse its discretion on three occasions by awarding attorney fees and costs to Shvachko?

Jackson (Franklin) v. State of Nevada,

Docket No. 54735

Adelson Educational Campus (Las Vegas) - 11:00 a.m. - Justices Cherry, Saitta, and Gibbons

This is an appeal from a Clark County judgment of conviction, pursuant to a jury verdict, of conspiracy to commit murder and seven counts of attempted murder with the use of a deadly weapon. Although he maintained that he fired his weapon in self-defense, a jury convicted appellant Franklin Jackson, along with his co-defendant Dresden Williams, for his involvement in an afterschool shooting at a bus stop in Las Vegas. Jackson now appeals. ISSUES: (1) Did the State commit a violation of Brady v. Maryland when it failed to disclose an anonymous informant's note concerning the shooting? (2) Was Jackson denied a fair trial because multiple State witnesses referred to gangs? (3) Should the district court have severed the trial of Jackson from that of his co-defendant Dresden Williams because the two had conflicting defense theories?

US Supreme Court oral arguments

Tue, 12 Oct 2010 07:43:53 -0800

On Tuesday, the Court will hear Harrington v. Richter (whether a state court's denial of an IAC claim warrants deference under AEDPA), Premo v. Moore (IAC claims based upon a plea deal made after counsel failed to suppress an unconstitutionally obtained confession), and Bruesewitz v. Wyeth (to what extent does the National Childhood Vaccine Injury Act of 1986 immunize vaccine manufacturers against design-defect claims).

On Wednesday, the Court will hear Skinner v. Switzer (whether a convicted prisoner seeking access to biological evidence for DNA testing may assert that claim in a civil rights action under 42 USC 1983, or whether such a claim may be asserted only in a petition for a writ of habeas corpus) and Kasten v. Saint-Gobain Performance Plastics (whether the anti-retaliation clause of the Fair Labor Standards Act applies to oral complaints).

US Supreme Court grants cert. in 6 cases

Tue, 12 Oct 2010 07:11:47 -0800

Bond v. United States - Whether a criminal defendant convicted under a federal statute has standing to challenge her conviction on grounds that, as applied to her, the statute is beyond the federal government's enumerated powers and inconsistent with the Tenth Amendment.

Camreta v. Greene and Alford v. Green - whether the traditional warrant/warrant exception requirements that apply to seizures of suspected criminals should apply to an interview of a child in light of reports of child abuse, or whether a balancing standard should apply; and whether the Ninth Circuit's constitutional ruling is reviewable, notwithstanding that it ruled in the petitioner's favor on qualified immunity grounds.

Duryea, PA v. Guarnieri - whether state and local government employees may sue their employers for retaliation under the First Amendment's Petition Clause when they petition the government on matters of private concern.

DePierre v. US - Whether the term "cocaine base" encompasses every form of cocaine that is classified chemically as a base, or whether the term "cocaine base" is limited to "crack" cocaine.

Global Tech Appliances v. SEB - whether the legal standard for the "state of mind" element of a claim for actively inducing an infringement under 35 US 271(b) is "deliberate indifference of a known risk" that an infringement may occur or whether it is "purposeful, culpable expression and conduct" to encourage an infringement.

Madison County v. Oneida Indian Nation - Whether tribal sovereign immunity from suit bars taxing authorities from foreclosing to collect lawfully imposed property taxes and whether the ancient Oneida reservation in New York was disestablished or diminished.

www.scotusblog.com will have links to the cert. petitions and responses, and the lower court opinions.

Nevada Supreme Court issues 4 opinions

Thu, 07 Oct 2010 10:12:15 -0800

Hoagland v. State - In a panel decision (Justices Hardesty, Douglas and Pickering), the Court finds that necessity may be asserted as a defense to a DUI charge, but the district court in this case did not erred in refusing to instruct the jury on necessity because the defendant's offer of proof was insufficient as a matter of law to satisfy an element of the defense. The Court holds that a DUI violation is not a strict liability offense and recognizes that necessity is a common law defense. The Court also notes that due process requires that there be an opportunity to present every available defense. The Court finds, however, that the defendant did not proffer evidence establishing that he did not substantially contribute to the emergency or create the situation, which is an element of the necessity defense. Here, the defendant's offer of proof showed that he parked his truck, in which he was living, in a prohibited parking stall at the Salvation Army. The Court finds that the defendant's action of parking in a prohibited stall created the situation requiring him to operate his truck while under the influence.

J.D. Construction v. IBEX Int'l Group - In a panel decision (Justices Hardesty, Douglas and Pickering), the Court address the proper scope and nature of NRS 108.2275 proceedings where a property owner seeks to expunge a frivolous or excessive mechanic's lien. The Court finds that the trial court must determine the material facts in order to reach a conclusion as to whether a lien is frivolous or excessive, but the trial court is not required to hold a full evidentiary hearing.

San Juan v. PSC Industrial Outsourcing - In a panel decision (Justices Hardesty, Douglas and Pickering), the Court holds as follows: " Our case law holds that a person who hires an independent contractor is not, without more, vicariously liable to the independent contractor's employees for their employer's torts, even though the job involves inherent danger or "peculiar risk." The issue presented by this appeal is whether this rule depends on the employer being solvent and competent. We hold that it does not. The Nevada workers' compensation system covers injured workers without regard to their employer's solvency. And competence, judged after the fact and without regard to the hirer's knowledge or fault, does not differ meaningfully from negligence. Holding a person who hires an independent contractor vicariously liable when the contractor turns out to be incompetent but not if he proves negligent draws a distinction the law does not support."

Cramer v. State, DMV - In a panel decision (Justices Hardesty, Douglas and Pickering), the Court holds as follows: " In 1995, the Legislature enacted NRS 50.320, which permits the use of an affidavit to prove a person's blood-alcohol content in certain proceedings, including driver's license revocation hearings, by a person who has been previously qualified to testify as an expert witness by a district court.

In Cramer v. State, Department of Motor Vehicles, Docket No. 53248, we conclude that NRS 50.320 limits the use of an expert witness affidavit to persons previously qualified by a district court to testify as an expert witness. Therefore, an administrative hearing officer lacks discretion to admit expert witness testimony by affidavit when the affiant has not been qualified by a district court or the affidavit fails to state the district court in which the affiant was permitted to testify.

In State, Department of Motor Vehicles v. Joseph, Docket No. 53380, we reject the suggestion that the district court qualification requirement in NRS 50.320 can be satisfied by way of a stipulation entered into by parties in a separate, unrelated district court case."

The Court has issued 38 opinions this year, four of which were in criminal cases.