Entries tagged with “opinion” from Harmfulerror

Via Scotusblog:

In McDonald v. Chicago, the Court reverses and remands in an opinion by Justice Alito.  The vote is 5-4.  Justice Stevens writes a dissenting opinion, and Justice Breyer writes a separate one, joined by Justices Ginsburg and Sotomayor.  The opinion finds that the Second Amendment rights recognized in Heller, to keep and bear arms, applies to the states.  Justice Alito finds that the right exists through the Due Process Clause of the 14th Amendment.  Justice Thomas finds that the right exists through the Privileges or Immunities Clause.  The opinion is 204 pages.

In  Christian Legal Society v. Martinez, the Court affirms and remands, in an opinion by Ginsburg.  The vote is 5-4. Justice Alito dissents, joined by the Chief Justice and Justices Scalia and Thomas.  Justices Stevens and Kennedy each concur.  The Court finds that a policy of Hastings College of Law, which mandates an "all comers" policy for student groups receiving school funding, is constitutionally reasonable and may therefore be enforced.

In  Bilski v. Kappos, the Court affirms, in an opinion by Justice Kennedy.   The opinion for the majority is not supported in all respects by those who join in part.  Justice Breyer concurs in the judgment, joined by Scalia.  Stevens concurs in the judgment, joined by Justices Ginsburg, Breyer, and Sotomayor.  The opinion concerns patent law.

In  Free Enterprise Fund v. Public Company Accounting Oversight Board, the Court reverses in part, affirms in part, and remands, in an opinion by the Chief Justice.  The vote is 5-4.  Justice Breyer dissents, joined by Justices Stevens, Ginsburg, and Sotomayor.  The Court finds that certain limitations on the power to remove board members is unconstitutional under the separation of powers doctrine.

I'm back from vacation, and I finished my latest brief, so postings will now resume.  Sorry for the delay.

The Nevada Supreme Court issued a decision today in Buckwalter v. Eighth Juidicial District Court.  In a decision authored by Justice Pickering, and joined by Justice Hardesty and Justice Douglas, the Court denied a petition for a writ in a medical malpractice action. 

The Court holds that the district court did not err in denying a motion to dismiss that was based upon the argument that an expert witness provided a declaration in the face of a statute that required an expert's affidavit.  The Court relies upon NRS 53.045 in fidning that a declaration that is sworn under penalty perjury is sufficient.

The Court finds that consideration of the writ is appropriate because the issue presented is not fact-bound and involves an unsettled and potentially significant, recurring question of law.

It's one of my cases, so I'm not going to say much.  The opinion is Polk v. State.  It addresses the State's failure to address a constitutional issue in its Answering Brief and the admission of expert testimony in violation of Melendez-Diaz and Crawford.

Via Scotusblog:

In United States v. Stevens, the Court affirmed the lower court decision in an opinion by Chief Justice Roberts.  The vote was 8-1, with Justice Alito dissenting.  The Court strikes down as substantially overbroad the federal law making it a crime to depict animal cruelty in commercial expression.

In Jerman v. Carlisle, the Court  reverses and remands the lower court decision, with Justice Sotomayor writing for the majority.   On a 7-2 vote, the Court holds that in defending against a violation of the Fair Debt Collection Practices Act, one may not use the defense that it was simply an error or mistake.  The opinion is here.

In Perdue v. Kenny A., the Court reverses and remands the lower court.   Justice Alito writes for the Court. Justice Breyer dissents in part, joined by Justices Stevens, Ginsburg, and Sotomayor.  The Court rules that the calculation of an attorney's fee may be increased if the lawyer has provided a superior performance but only in "extraordinary circumstances."  The opinion is here.

In Conkright v. Frommert, the Court reverses and remands the lower court, in an opinion by Chief Justice Roberts.  The vote is 5-3, with Justice Sotomayor taking no part.  Justice Breyer dissents, joined by Justices Stevens and Ginsburg.   The Court rules that the federal district court should have deferred to the ERISA plan administrator's interpretation of the plan's terms.  The opinion is here.

In Posas v. Horton, the Nevada Supreme Court clarifies when a district court should give a jury instruction on a sudden-emergency in a car collission case.

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)."

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."

 

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."

The Nevada Supreme Court issued one decision today - Fields v. State.  The Court reverses a murder conviction based upon the trial court's abuse of discretion in admitting bad act evidence.

John v. Douglas County School District - The Court, sitting en banc, issues an opinion authored by Justice Gibbons, which holds that Nevada's anti-SLAPP statute applies to a plaintiff's federal causes of action and finds that the district court properly dismissed the plaintiff's lawsuit under the anti-SLAPP statute.

Mendoza-Lobos v. State -(Majority opinion authored by Chief Justice Hardesty and joined by Justices Saitta, Gibbons and Cherry) -  "In this appeal, we address two issues related to recent amendments to the deadly weapon enhancement statute, NRS 193.165(1), that require the district court to consider enumerated factors and state on the record that it has considered the factors in determining the length of the enhancement sentence.

First, we consider whether these amendments to NRS 193.165(1) violate the separation-of-powers doctrine.  Although we conclude that the amended statute violates the separation-of-powers doctrine to the extent that it requires the courts to state on the record that the enumerated factors have been considered and to make specific findings in that respect, we nonetheless elect to abide by the mandate contained therein because it serves a laudable legislative goal with respect to the length of enhancement sentences and facilitates appellate review. 

Second, we consider whether NRS 193.165(1) requires the district court to make findings on the record before imposing a sentence enhancement for the use of a deadly weapon.  We conclude that it does and that findings must be made for each enhancement.  Applying our holding to the instant case, we conclude that the district court's failure to make the required findings for two of appellant Douglas Mendoza-Lobos' enhancements does not amount to plain error warranting reversal of his conviction and sentence.  Therefore, we affirm the judgment of conviction."

Justices Douglas, Parraguirre and Pickering agree that "the portion of NRS 193.165(1) requiring the district courts to consider certain enumerated factors when imposing a sentence for a deadly weapon enhancement does not run afoul of the separation-of-powers doctrine.  I also agree with the result reached.  However, [they] disagree with [their] colleagues' conclusion that NRS 193.165(1) is ambiguous."

The Court also issued an opinion in a civil case today.  In NC-DSH v. Garner, the Court addresses the impact of an egregious fraud upon the court by attorney Lawrence Davidson.  Without knowledge or approval of his clients, Davidson settled their case for $160,000, forget the necessary settlement papers and disappeared with the money.  The clients obtained an order from the district court vacated a stipulated final judgment under NRCP 60(b).  The hospital defendant appealed.  The Court affirms:  "The district court found that Davidson committed "fraud upon the court," which is not subject to NRCP 60(b)(3)'s six-month limitations period.  Murphy v. Murphy, 103 Nev. 185, 186, 734 P.2d 738, 739 (1987).  Although true fraud on the court is rare and requires "egregious misconduct," Occhiuto v. Occhiuto, 97 Nev. 143, 146 n.2, 625 P.2d 568, 570 n.2 (1981) (quoting United States v. International Telephone & Tel. Corp., 349 F. Supp. 22, 29 (D. Conn. 1972)), the district court did not abuse its discretion in finding such fraud by Davidson here.  Nor were its findings that Davidson lacked authority and the Garners did not ratify the settlement clearly erroneous.  Finally, while the Hospital argues the Garners' motion was untimely because not made within six months of entry of judgment, it did not establish prejudicial delay."