Table of Contents | Anthony S. Noonan IRA, LLC v. U.S. Bank National Ass'n Banking, Real Estate & Property Law | State, Department of Taxation v. District Court Civil Procedure, Constitutional Law | Nelson v. Nelson Civil Procedure, Family Law | State, Department of Corrections v. DeRosa Civil Procedure, Labor & Employment Law | Matthews v. State Civil Rights, Criminal Law | Kuptz-Blinkinsop v. Blinkinsop Family Law, Real Estate & Property Law | Estate of Mary Curtis v. Las Vegas Medical Investors, LLC Medical Malpractice, Professional Malpractice & Ethics | Spencer v. Klementi Personal Injury |
Click here to remove Verdict from subsequent Justia newsletter(s). | New on Verdict Legal Analysis and Commentary | A Modest Proposal: A Heartbeat Bill for Those Who Don’t Wear Masks | MARCI A. HAMILTON | | University of Pennsylvania professor Marci A. Hamilton draws upon a strategy used by anti-abortion advocates in suggesting a way to encourage (or coerce) more people into wearing masks to avoid the spread of COVID-19. Hamilton proposes requiring persons who opt not to wear a mask in public (1) to watch, on a large screen, an adult's beating heart for 30 seconds, and (2) to be read a statement about how their decision unreasonably endangers others. | Read More |
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Supreme Court of Nevada Opinions | Anthony S. Noonan IRA, LLC v. U.S. Bank National Ass'n | Citation: 136 Nev. Adv. Op. No. 41 Opinion Date: July 9, 2020 Judge: Silver Areas of Law: Banking, Real Estate & Property Law | The Supreme Court held that the entire amount of a homeowners' association's (HOA) yearly assessment can be included in the superpriority piece of an HOA's lien under Nev. Rev. Stat. 116.3116 so long as the assessment became due in the nine months preceding the HOA's recording of its notice of delinquent assessments. When Homeowners did not pay their 2011 yearly assessment, the HOA, in April 2011, recorded a notice of lien for delinquent assessments. A Bank, the beneficiary of the first deed of trust on the property, requested the super priority amount from the HOA's foreclosure agent and then tendered to the foreclosure agent an amount representing nine out of twelve months of assessments. The HOA continued with the foreclosure sale, and Appellants purchased the property. Appellants filed a complaint seeking to quiet title to the property. The district court granted summary judgment for the Bank, concluding that the Bank's tender cured the default on the superpriority portion of the HOA's lien and that the foreclosure sale did not therefore extinguish the Bank's deed of trust. The Supreme Court reversed, holding that because the Bank did not tender the entire superpriority amount before the HOA foreclosed on its lien, the foreclosure sale extinguished the Bank's deed of trust on the property. | | State, Department of Taxation v. District Court | Citation: 136 Nev. Adv. Op. No. 42 Opinion Date: July 9, 2020 Judge: James W. Hardesty Areas of Law: Civil Procedure, Constitutional Law | The Supreme Court held that a government entity does not have "possession, custody, or control" over the content on the personal cell phones of former workers hired through a temporary employment agency so as to be required under Nev. R. Civ. P. 16.1 to disclose that material. Petitioner, the State of Nevada Department of Taxation, entered into an independent contractor relationship with a temporary employment agency to hire and train eight temporary workers to rank the applications received for recreational marijuana establishment licenses. Real party in interest Nevada Wellness Center, LLC sued the Department alleging that the Department employed unlawful and unconstitutional application procedures in awarding licenses. During discovery, Nevada Wellness moved to compel the production of the temporary workers' cell phones for inspection. The district court granted the motion. The Department petitioned for a writ of prohibition or mandamus barring enforcement of the discovery order, arguing that the Department lacked "possession, custody, or control" over the cell phones pursuant to Nev. R. Civ. P. 16.1. The Supreme Court granted the petition, holding that the temporary workers' cell phones were outside the Department's possession, custody or control and that the district court exceeded its authority when it compelled the Department to produce that information. | | Nelson v. Nelson | Citation: 136 Nev. Adv. Op. No. 36 Opinion Date: July 9, 2020 Judge: Stiglich Areas of Law: Civil Procedure, Family Law | The Supreme Court held that it does not have jurisdiction to review a district court order denying a request for a joint preliminary injunction pursuant to EDCR 5.517 in a family law matter because no court rule or statute permits an appeal of a district court order denying a request for a joint preliminary injunction. After Husband filed for divorce, the clerk of court issued a joint preliminary injunction pursuant to EDCR 5.85 prohibiting the parties from disposing of any property subject to any community interest claim. After the district court issued a divorce decree the Supreme Court remanded the case to conduct proper tracing to determine community interests. On remand, Wife moved for the district court to reaffirm its prior joint preliminary injunction pursuant to EDCR 5.517. The district court issued a preliminary injunction for two assets subject to community property claims but declined to extend the injunction to other assets in a spendthrift trust. Wife appealed. The Supreme Court dismissed the appeal, holding that joint preliminary injunctions under EDCR 5.517 are not subject to Nev. R. Civ. P. 65, and therefore, orders denying or granting injunctions under EDCR 5.517 are not appealable under Nev. R. App. P. 3A(b)(3). | | State, Department of Corrections v. DeRosa | Citation: 136 Nev. Adv. Op. No. 37 Opinion Date: July 9, 2020 Judge: Ron D. Parraguirre Areas of Law: Civil Procedure, Labor & Employment Law | The Supreme Court held that service of a petition for judicial review of an agency's decision does not require personal service under Nev. R. Civ. P. 4.2(a) because a petition for judicial review is best construed as a post-complaint filing so an alternative method of service under Nev. R. Civ. P. 5(b) will suffice. After Patricia DeRosa was fired by the Nevada Department of Corrections (NDOC), DeRosa requested a hearing. The hearing officer reversed the NDOC's decision. NDOC filed a petition for judicial review and served the petition on DeRosa by mailing it to her counsel under Rule 5(b). DeRosa moved to dismiss the petition for lack of personal service. The district court granted the motion, concluding that personal service was necessary under Nev. Rev. Stat. 233B.130(5). The Supreme Court reversed, holding that a petition for judicial review is best construed as a post-complaint pleading and that personal service is unnecessary and an alternative method of service under Rule 5(b) will instead suffice. | | Matthews v. State | Citation: 136 Nev. Adv. Op. No. 38 Opinion Date: July 9, 2020 Judge: Silver Areas of Law: Civil Rights, Criminal Law | The Supreme Court reversed Defendant's conviction, holding that, based on the record, it was more likely than not that the State used a peremptory challenge for impermissible reasons in violation of Batson v. Kentucky, 476 U.S. 79 (1986), necessitating a new trial. Defendant faced multiple charges related to a shooting. During jury selection, the State exercised one of its peremptory challenges to remove an African-American veniremember. Defendant made a Batson objection claiming that the peremptory challenge was based on the juror's race. The district court summarily overruled the objection without making any specific findings or explaining its reasoning. The Supreme Court reversed the judgment of conviction, holding (1) the record belied the State's nondemeanor explanations for using a peremptory challenge on the juror, indicating that the explanations were pretextual; and (2) because the district court did not fully engage in the inquiry and consideration required at step three in the Batson analysis, the court clearly erred in denying Defendant's Batson objection. | | Kuptz-Blinkinsop v. Blinkinsop | Citation: 136 Nev. Adv. Op. No. 40 Opinion Date: July 9, 2020 Judge: Stiglich Areas of Law: Family Law, Real Estate & Property Law | In this real property dispute, the Supreme Court clarified that its holding in Davidson v. Davidson, 382 P.3d 880 (Nev. 2016), does not apply to claims for enforcement of real property distribution in divorce decrees. The Supreme Court held in Davidson that the six-year statute of limitations in Nev. Rev. Stat. 11.190(1)(a) applies to claims for enforcement of a property distribution provision in a divorce decree. In the instant case, Appellant sought to partition real property that a divorce decree from nine years earlier awarded to Respondent as separate property. Appellant argued that the decree expired pursuant to Davidson, which precluded Respondent from enforcing his distribution rights under the decree and rendered the property still held in joint tenancy subject to partition. The district court granted summary judgment and quieted title in favor of Respondent. The Supreme Court affirmed, holding (1) section 11.190(1)(a) unambiguously excludes from its purview actions for recovery of real property, and therefore, Davidson did not apply; (2) Respondent was not required to renew the divorce decree pursuant to Nev. Rev. Stat. 17.214 to enforce his real property rights; and (3) Appellant's partition claim was barred by claim preclusion. | | Estate of Mary Curtis v. Las Vegas Medical Investors, LLC | Citation: 136 Nev. Adv. Op. No. 39 Opinion Date: July 9, 2020 Judge: Silver Areas of Law: Medical Malpractice, Professional Malpractice & Ethics | The Supreme Court held that the "common knowledge" exception to the affidavit requirement for professional negligence claims against a provider of health care can also be applied to determine whether a claim that appears to sound in professional negligence, and does not fall under Nev. Rev. Stat. 41A.100, actually sounds in ordinary negligence and thus is not subject to Nev. Rev. Stat. 41A.071. A nursing home nurse mistakenly administered morphine to a patient that had been prescribed for another patient. The patient died three days later from morphine intoxication. The patient's estate sued the nursing home but did not explicitly assert any claim for professional negligence or file an expert affidavit under section 41A.071. The district court granted summary judgment for the nursing home, concluding that the complaint's allegations sounded in professional negligence and, therefore, the estate was required to file an expert affidavit. The Supreme Court reversed in part, holding (1) the mistaken administration of another patient's morphine constituted ordinary negligence that a lay juror could assess without expert testimony, and such a claim is not subject to section 41A.071's medical expert affidavit requirement; and (2) the district court correctly granted summary judgment on the allegations regarding the failure to monitor, as those allegations required expert testimony to support. | | Spencer v. Klementi | Citation: 136 Nev. Adv. Op. No. 35 Opinion Date: July 9, 2020 Judge: Cadish Areas of Law: Personal Injury | The Supreme Court affirmed in part and reversed in part the orders of the district court granting summary judgment to Respondents on Appellant's defamation claims and malicious-prosecution claim, holding that the district court erred in relying on the judicial-proceedings privilege in granting summary judgment for Respondents on Appellant's defamation claim based on certain statements. Appellant sued Respondents for defamation based on statements Respondents made during the public comment period of planning commission an improvement district meetings. Appellant also sued for malicious prosecution after he was acquitted on battery and elder abuse charges. The district court granted summary judgment for Respondents. The Supreme Court reversed in part, holding (1) the judicial-proceedings privilege extends to statements made during quasi-judicial proceedings, but the public comment portions of the meetings in this case were not quasi-judicial, and therefore, the district court erred in relying exclusively on this privilege in granting summary judgment; (2) the district court correctly granted summary judgment on Appellant's defamation claims that relied on statements that were undisputedly true; and (3) the district court did not err in applying the law in resolving the malicious prosecution claim. | |
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