MAC PUBLISHED DECISIONS
Jones v. Las Vegas Metropolitan Police Department, 873 F.3d 1123 (9th Cir. 2017).
The Ninth Circuit Court of Appeals decided that even though a father of a decedent son was not properly named as a party in a civil rights lawsuit, the father should be given a chance to correct the mistake. The father did not have the right to vicariously assert rights belonging to his decedent son. But, the court allowed the father to gain standing under the Federal Rules of Civil Procedure, Rule 17 by substituting the father as the administrator of the son’s estate.
Mendenhall v. Tassinari, 133 Nev. Adv. Op. No. 78, 403 P.3d 364 (2017).
The Nevada Supreme Court determined that an accepted offer of judgment can serve as the basis for claim preclusion in a subsequent lawsuit involving the same parties or their privies. If a party can assert an affirmative defense in a first lawsuit, a claim based on the same reasons is sufficiently ripe and cannot be reasserted in a second lawsuit.
Santopietro v. Howell, 857 F.3d 980 (9th Cir. 2017).
The plaintiffs were street performers on the Las Vegas strip who claim to have only solicited tips. The Ninth Circuit Court of Appeals concluded that Clark County Code 6.56.030, requiring a business license for street performers, was unconstitutional under the First Amendment as applied to the plaintiffs. The sidewalks along the Las Vegas strip are a public forum, and the solicitation of tips is also protected under the First Amendment the same as traditional speech. So, the court remanded the outstanding issues to be resolved at trial.
My Left Foot Children’s Therapy, LLC v. Certain Underwriter’s at Lloyd’s London Subscribing to Policy No. HaH15-0632, 207 F.Supp.3d 1168 (D. Nev. 2016).
Applying Nevada law in a diversity case, the Federal District Court concluded that plaintiffs properly alleged claims against insureds that provided medically unnecessary therapy services in violation of federal and state false claims acts. However, the court also limited the amount of expenses related to the duty to defend based on an endorsement to the insurance policy.
Patino v. Las Vegas Metropolitan Police Department, 207 F.Supp.3d 1158 (D. Nev. 2016).
In this case involving a police sergeant’s shooting of a dog during an emergency situation, the Federal District Court ruled that Fourth Amendment protections afforded to individuals do not extend to a dog. Rather, the court explained that a dog is considered property and is analyzed as a seizure of property under the Fourth Amendment. The court concluded that the police sergeant was justified in his warrantless entry into a backyard after hearing gunshots and the sound of what he perceived to be a distressed individual. The sergeant’s shooting of the resident’s attacking dog was also justified because the sergeant was only ensuring that no one was in immediate danger, and the dog was a serious threat of injury.
Hill v. Las Vegas Metropolitan Police Department, 197 F.Supp.3d 1226 (D. Nev. 2016).
The Federal District Court concluded that a mother’s claim on behalf of her decedent son against police officers and the police department lacked factual support. The mother’s allegations did not rise to the level of deliberate indifference of the son’s safety and Fourteenth Amendment rights as a pretrial detainee. The police officers were simply not subjectively aware of any substantial risk of harm or that the decedent son would attempt suicide while in custody.
Las Vegas Development Group, LLC v. Yfantis, 173 F.Supp.3d 1046 (D. Nev. 2016).
A purchaser of real property at a home owners association non-judicial foreclosure sale does not purchase property belonging to the United States government, even though the underlying loan was insured by the Federal Housing Authority. As such, constitutional principles of preemption under the Supremacy Clause and due process were largely inapplicable. Certain provisions under Nevada Revised Statutes Chapter 107, dealing with the superpriority of HOA liens, also survived a facial constitutional challenge.
Schwartz v. Lopez, 132 Nev. Adv. Op. No. 73, 382 P.3d 886 (2016).
The Nevada Supreme Court ruled that the Nevada legislation creating education savings accounts was constitutional, even though the legislation allowed for public funds to be used for subsidizing private school, tutoring, or other non-public educational services. However, the court held that the legislation could not be implemented because the legislation did not properly appropriate funds for the education savings accounts.
Mona v. District Court, 132 Nev. Adv. Op. No. 72, 380 P.3d 836 (2016).
The Nevada Supreme Court explained that a person in her individual capacity was different than the same person in her representative capacity as a co-trustee of a family trust. Efforts to collect on a judgment directed to an individual in her representative capacity could not be automatically applied to the same individual in her personal capacity.
Hunter v. Gang, 132 Nev. Adv. Op. No. 22, 377 P.3d 448 (Nev. App. 2016).
The Nevada Court of Appeals ruled that although district courts possess inherent power to dismiss cases for lack of prosecution, this power must be used with restraint. The District Court’s dismissal with prejudice of the complaint for lack of prosecution was an abuse of discretion under the circumstances of this case. The case had been pending for less than two years, the parties believed that settlement was a possibility, and the District Court’s findings were not supported by substantial evidence. Since the court vacated the dismissal order, the award of attorney fees of costs was also necessarily vacated.
Fergason v. Las Vegas Metropolitan Police Department, 131 Nev. Adv. Op. No. 94, 364 P.3d 592 (2015).
The Nevada Supreme Court concluded that Nevada Revised Statutes 179.1173, governing presumptions in civil forfeiture proceedings, should be construed narrowly, such that a criminal conviction does not always automatically satisfy all the requirements of civil forfeiture in a separate case. In Nevada civil forfeiture cases, courts can also relax standing requirements to reach the merits of the dispute.
City of North Las Vegas v. 5th & Centennial, LLC, 130 Nev. Adv. Op. No. 66, 331 P.3d 896 (2014), cert. denied, 135 S.Ct. 718 (2014).
The Nevada Supreme Court clarified that prejudgment interest on a landowner’s claim for precondemnation damages commences with the first date of compensable injury instead of the date of the service of the summons and complaint. The court also explained that the 15-year statute of limitations for takings actions applies to claims for precondemnation damages.
Las Vegas Tribe of Paiute Indians v. Phebus, 5 F.Supp.3d 1221 (D. Nev. 2014).
Addressing issues of criminal jurisdiction of an Indian tribe, the Federal District Court ruled that the tribe had authority to assert criminal jurisdiction over any person qualifying as an Indian under the Indian Civil Rights Act when proved beyond a reasonable doubt. The question of a defendant’s Indian status was a question for a jury in tribal court.
Sandoval v. Las Vegas Metropolitan Police Department, 756 F.3d 1154 (9th Cir. 2014), cert. denied, 135 S.Ct. 1401 (2015).
The Ninth Circuit ruled that under the circumstances, a warrantless entry into a home based upon a suspected misdemeanor charge was not supported by probable cause according to the Fourth Amendment. The misdemeanor prowling call did not rise to the level of exigency required for entry into a home without a warrant.
Lavi v. District Court, 130 Nev. Adv. Op. No. 38, 325 P.3d 1265 (2014).
This case involved a loan purchaser’s claim for breach of a loan guaranty against the guarantor to recover a deficiency judgment following the sale of commercial real property. The Nevada Supreme Court concluded that under the former version of Nevada Revised Statutes 40.455, a claim for breach of guaranty could not be asserted based upon the filing of a lawsuit, even when the one-action rule (Nevada Revised Statutes 40.430) is waived. Instead, the vehicle for asserting a deficiency judgment under the former version of the statute required at least the filing of a motion for summary judgment within six months after the foreclosure sale.
Gunderson v. D.R. Horton, Inc., 130 Nev. Adv. Op. No. 9, 319 P.3d 606 (2014).
The Nevada Supreme Court affirmed a favorable verdict in a 38-day construction defect jury trial, despite plaintiffs’ claims of attorney misconduct. The court also construed offer of judgment principles with Nevada Revised Statutes 40.655 to limit the recovery of attorney fees and costs in construction defect cases.
ReconTrust Co., N.A. v. Zhang, 130 Nev. Adv. Op. No. 1, 317 P.3d 814 (2014).
The law of the case doctrine usually requires lower courts to abide by the rulings of the Supreme Court on remand. However, the Nevada Supreme Court explained that this doctrine does not apply to respondents on appeal that do not assert alternative grounds for upholding the appealed judgment. In other words, an unsuccessful respondent may assert additional claims or defenses on remand if the previous decision of the Supreme Court did not directly address the particular claim or defense.
Sandpointe Apartments, LLC v. District Court, 129 Nev. Adv. Op. No. 87, 313 P.3d 849 (2013).
The Nevada Supreme Court resolved a conflict among district courts with differing interpretations of Nevada Revised Statutes 40.459, which deals with the amount that a secondary lender can potentially recover as a deficiency judgment. The court applied the plain language of the statute and limited such secondary lenders to the amount of consideration paid. But, the court limited the application of the statute to prospective relief only after the effective date of the statute.
Las Vegas Metropolitan Police Department v. Yeghiazarian, 129 Nev. Adv. Op. No. 81, 312 P.3d 503 (2013).
The Nevada Supreme Court clarified that evidence of a personal injury plaintiff’s blood alcohol content is not admissible at trial unless the BAC is above the legal limit or there is other corroborating evidence of intoxication. The Supreme Court also explained that awards of attorney fees also apply to work performed by an attorney’s staff, which also must be examined under the same standard for reasonableness before fees can be awarded.
Stilwell v. City of North Las Vegas, 129 Nev. Adv. Op. No. 76, 311 P.3d 1177 (2013).
In construing Nevada Revised Statutes 176.115, the Nevada Supreme Court reinforced the Nevada Constitution which does not permit an appeal to the Supreme Court from an inferior tribunal, such as a municipal court that has already been the subject of an appeal to a district court. The court also elaborated on the plain language of Nevada Revised Statutes 176.115 to require a finding of malice or the lack of probable cause before a criminal defendant could recover costs against the government.
Bisch v. Las Vegas Metropolitan Police Department, 129 Nev. Adv. Op. No. 36, 302 P.3d 1108 (2013).
The Nevada Supreme Court confirmed the discipline against a police officer for making misrepresentations in medical forms. The court reinforced the constitutionality of the police department policy governing the conduct of police officers, even while off duty.
Dynamic Transit v. Trans Pacific Ventures, 128 Nev. 755, 291 P.3d 114 (2012), cert. denied, 134 S.Ct. 682 (2013).
The Carmack Amendment (49 United States Code § 14706 et seq.) generally requires federal law to apply to claims involving the interstate transport of goods. However, the Nevada Supreme Court determined that a state law claim for “true conversion” was an exception to preemption under the Carmack Amendment based upon the unique facts of this case. While a plaintiff’s recovery is limited under the Carmack Amendment, the court allowed the plaintiff to recover additional amounts under state law, including punitive damages.
Sandoval v. Las Vegas Metropolitan Police Department, 854 F.Supp.2d 860 (D. Nev. 2012).
Police officers were called to investigate a potential burglary at a Las Vegas residence. The Federal District Court ruled that the officers were justified in entering the house upon seeing individuals who appeared to match the descriptions given to them and were non-responsive to commands. The court also held that the officers did not use excessive force in detaining the individuals. The court also concluded that an officer was justified in shooting an approaching pit bull because the plaintiffs failed to specifically allege any specific claim regarding the dog.
Shafer v. City of Boulder, 896 F.Supp.2d 915 (D. Nev. 2012).
The Federal District Court concluded that certain areas of a plaintiff’s home were curtilage and entitled to protections under the Fourth Amendment against unlawful search and seizure. Moreover, the court held that even though the plaintiff was aware of a neighbor’s surveillance cameras, the plaintiff was still entitled to a right of privacy. The court also ruled that the individual officers were not entitled to qualified immunity because the court made the determination that the constitutional right was clearly established.
Butwinick v. Hepner, 128 Nev. 718, 291 P.3d 119 (2012).
The Nevada Supreme Court held that although a claim or counterclaim can be purchased through execution of a judgment that is not stayed pending appeal, defenses cannot be purchased through execution. The court reconfirmed the notion that lawsuits are treated as personal property of the claimant, whether styled as a complaint or as a counterclaim. But, the court concluded that defenses to a lawsuit do not carry any personal property right; thus, there was no ability to attach a judgment to a party’s defense to a lawsuit.
Clark County v. Southern Nevada Health District, 128 Nev. 651, 289 P.3d 212 (2012).
The Nevada Supreme Court clarified the ambiguous language of Nevada Revised Statutes 439.365 and held that Clark County does not have the right to interfere with the dedicated funding stream from existing tax revenues used to fund the Southern Nevada Health District. The Supreme Court also clarified that a writ of prohibition is not available against non-judicial government actors, but the relief sought must be characterized as mandamus under Nevada Revised Statutes Chapter 34.
Tsao v. Desert Palace, Inc., 698 F.3d 1128 (9th Cir. 2012).
The Ninth Circuit Court of Appeals affirmed summary judgment in favor of a casino and a police officer for civil rights claims made by a professional gambler. Although the Ninth Circuit held that the casino did not violate any civil rights by detaining the professional gambler for trespassing, the court left open the question of state law liability against the casino to be determined by the District Court on remand. The police officer was not liable for either civil rights or state law claims because he acted with probable cause.
In re Windmill Durango Office, LLC, 481 B.R. 51 (B.A.P. 9th Cir. 2012).
The Bankruptcy Appellate Panel upheld the ruling of the United States Bankruptcy Court that a secured creditor, which admittedly had purchased another creditor’s claim as a means to block confirmation of the debtor’s Chapter 11 plan, could not change the previous creditor’s ballot accepting the plan and confirming the plan.
Club Vista Financial Services, L.L.C. v. District Court, 128 Nev. 224, 276 P.3d 246 (2012).
The Nevada Supreme Court granted a writ petition directing the District Court to apply the factors in Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986) in deciding whether an opposing party’s prior attorney can be deposed. Under the Shelton analysis, the party seeking to depose an opposing attorney must demonstrate that the information sought: (1) cannot be obtained by other means; (2) is relevant and nonprivileged; and (3) is crucial to the preparation of the case.
Wheble v. District Court, 128 Nev. 119, 272 P.3d 134 (2012).
In determining whether the District Court can apply Nevada’s savings statute (Nevada Revised Statutes 11.500) to save otherwise time-barred medical malpractice claims, the Nevada Supreme Court held that Nevada Revised Statutes 11.500 does not save medical malpractice claims that have been dismissed because the failure to comply with the strict affidavit requirements of Nevada Revised Statutes 41A.071 deems the claims void ab initio. Nevada Revised Statutes 11.500 applies only to actions that have been “commenced.” Since the complaint was dismissed for failure to comply with the strict affidavit requirements, the complaint never legally existed; thus, the action was never commenced. As such, Nevada Revised Statutes 11.500(1) does not apply to actions dismissed for failure to comply with Nevada Revised Statutes 41A.071.
Perez-Morciglio v. Las Vegas Metropolitan Police Department, 820 F.Supp.2d 1100 (D. Nev. 2011).
The Federal District Court contemplated a case involving two street performers who were on the sidewalk outside of the Venetian casino in Las Vegas. The street performers were detained by private Venetian security guards, and police officers later arrived at the scene. The court held that the Venetian casino did not satisfy either the public function test or the joint action test to be treated as a state actor for purposes of liability under 42 United States Code § 1983 for the plaintiffs’ civil rights claims.
Perez-Morciglio v. Las Vegas Metropolitan Police Department, 820 F.Supp.2d 1111 (D. Nev. 2011).
The Federal District Court contemplated a case involving two street performers who were on the sidewalk outside of the Venetian casino in Las Vegas. The court held that the arresting officers were not liable for First Amendment claims, and were also entitled to qualified immunity for substantive and procedural due process claims. However, there were factual issues precluding summary judgment for Fourth Amendment claims arising out of the arrest and municipal liability as to the Las Vegas Metropolitan Police Department.
Berkson v. LePome, 126 Nev. 492, 245 P.3d 560 (2010).
Nevada Revised Statutes 11.340, which allows a plaintiff whose judgment is reversed on appeal to refile within one year after reversal, is unconstitutional as it interferes with the judiciary’s authority to manage the judicial process and the Supreme Court’s ability to finally resolve matters on appeal. Plaintiffs refiled a complaint pursuant to Nevada Revised Statutes 11.340, after judgment in their favor was reversed on appeal. The new complaint was summarily dismissed based on issue and claim preclusion and the Supreme Court upheld the dismissal, striking Nevada Revised Statutes 11.340 as unconstitutional.
WMCV Phase 3, LLC v. Shushok & McCoy, Inc., 750 F.Supp.2d 1180 (D. Nev. 2010).
On cross-motions for summary judgment in a commercial landlord-tenant dispute, the Federal District Court held that there were factual issues precluding summary judgment on some claims. The tenant’s reliance upon a third-party individual claiming to be an agent of the landlord was subject to an apparent authority analysis reserved for trial. The court also permitted an amendment to the pleadings to correctly state various state law claims.
Sanchez v. Wal-Mart Stores, Inc., 125 Nev. 818, 221 P.3d 1276 (2009).
The Nevada Supreme Court affirmed the District Court’s order dismissing a lawsuit against various pharmacies for failure to state a viable claim for relief. Plaintiffs alleged that the pharmacies owed a duty of care to unidentified third parties injured by a pharmacy customer, and that Nevada’s pharmacy statutes and regulations create a statutory duty to support a negligence per se claim against the pharmacies. The Nevada Supreme Court ultimately held that the pharmacies do not owe a duty to unidentified third parties and that Nevada’s pharmacy statutes simply provide an enhanced recordkeeping requirement rather than creating a duty for pharmacies to protect third parties.
In re Estate and Living Trust of Miller, 125 Nev. 550, 216 P.3d 239 (2009).
The Nevada Supreme Court was presented with the issue of whether a judgment on appeal can qualify as a “more favorable judgment” for the purposes of fee-shifting provisions in the offer of judgment statute and court rule. The Supreme Court held that the fee-shifting provisions in the Nevada Rules of Civil Procedure, Rule 68 and Nevada Revised Statutes 17.115 apply to the judgment that determines the final outcome in the case which, in the event of an appellate reversal, may be different from the judgment originally entered by the District Court. Additionally, the Supreme Court held that on remand, the District Court should award reasonable post-rejection fees incurred at the District Court and appellate levels until the eventual termination of the case.
Countrywide Home Loans, Inc. v. Thitchener, 124 Nev. 725, 192 P.3d 243 (2008).
In upholding an award of $968,070 in punitive damages against Countrywide, the Nevada Supreme Court clarified that implied malice is an independent basis to award punitive damages. The court explained that conscious disregard, which is the mental element for proving implied malice, does not need to be supported by evidence of actual knowledge of intent to harm. Instead, to establish conscious disregard, there only needs to be some conduct that goes beyond mere recklessness or gross negligence. The court also clarified that testimony at trial, coupled with documentary evidence of converted personal property, is sufficient to establish the special value of the personal property.
Ohio Casualty Insurance Co. v. Biotech Pharmacy, Inc., 547 F.Supp.2d 1158 (D. Nev. 2008).
The Federal District Court applied Texas law and held that there is no right to reimbursement of defense costs for an insurance carrier when the insured has not agreed to reimbursement either in the policy itself or in a separate agreement. This holding stands even if it is eventually determined that there is coverage under the insurance policy.
D.R. Horton, Inc. v. District Court, 123 Nev. 468, 168 P.3d 731 (2007).
In determining the sufficiency of a pre-litigation notice of construction defects under Nevada Revised Statutes 40.645, the Supreme Court established the reasonable threshold test. In weighing a contractor’s right to repair alleged construction defects against a homeowner’s right to rely upon a valid representative sample of construction defects within a community of multiple residences, the Nevada Supreme Court provided minimum testing standards. The court also clarified that the District Court has broad discretion to determine the validity of a notice of construction defects.
Bacher v. State Engineer, 122 Nev. 1110, 146 P.3d 793 (2006).
Although Nevada Revised Statutes 533.370(6)(a) allows for an application for water based upon third-party beneficial use, the expected use cannot be speculative. The Nevada Supreme Court adopted the anti-speculation doctrine, which requires a showing of beneficial use, and the applicant must have a contractual or agency relationship with the third party. Because the State Engineer approved a water transfer from Sandy Valley to Primm without any specification of the intended beneficial use of the appropriation, the Supreme Court reversed, concluding that there was a lack of substantial evidence to support the State Engineer’s approval of the application.
Zhang v. District Court, 120 Nev. 1037, 103 P.3d 20 (2004).
A second real property purchase agreement is unenforceable when it is executed only because the seller would not perform under a previous purchase agreement which contained a lesser price. Under the preexisting duty rule, which is recognized in Nevada, a seller of real property cannot revoke one contract and simultaneously execute another similar contract for a greater price.
Health Plan of Nevada, Inc. v. Rainbow Medical, LLC, 120 Nev. 689, 100 P.3d 172 (2004).
An arbitration award should be enforced if the arbitrator is arguably construing or applying the contract and does not exceed his powers or manifestly disregard the law. If there is justification for the award, the award should be confirmed. Additionally, a remand by the District Court to an arbitrator to allow an arbitrator to explain his decision is not permitted under Nevada statutes or at common law.
Capitol Indemnity Corp. v. Wright, 341 F.Supp.2d 1152 (D. Nev. 2004).
In a declaratory judgment action, the Federal District Court held that intentional and criminal acts were excluded from coverage under an insurance policy. But, the negligence claims, even though potentially based upon intentional and criminal acts, were not excluded from coverage under the insurance policy.
U.S. Design & Construction Corp. v. International Brotherhood of Electrical Workers, 118 Nev. 458, 50 P.3d 170 (2002).
While the plain language of Nevada Revised Statutes 608.150 grants the right of enforcement to the district attorney for recovery of labor costs due to subcontractors, the language of the statute does not preclude or explicitly exclude a private right of enforcement from the aggrieved subcontractors.
Musser v. Bank of America, 114 Nev. 945, 964 P.2d 51 (1998).
A termination clause in a lease, without accompanying language regarding how any compensation award for condemnation proceedings is to be allocated, is sufficient to bar a lessee’s claim to part of the award. When interpreting contracts, every word should be given effect if possible, and contracts should be construed to avoid rendering portions of them unnecessary.
Executive Management, Ltd. v. Ticor Title Insurance Co., 114 Nev. 823, 963 P.2d 465 (1998).
A judgment entered in a previous action in which parties were co-defendants but did not file permissive counterclaims did not have a claim preclusion effect, which is a separate issue of whether a former judgment has a preclusive effect on claims in the new lawsuit. Abuse of process is not usually a compulsory counterclaim.
Langman v. Nevada Administrators, Inc., 114 Nev. 203, 955 P.2d 188 (1998).
The District Court and the Supreme Court review an administrative decision to determine if the decision was arbitrary and capricious, and thus an abuse of discretion. The decision of an administrative agency is not arbitrary and capricious if it is supported by substantial evidence. When an employee is injured and seeks insurance coverage from his employer, the court applies the version of Nevada Revised Statutes 616.545 that was in effect at the time of the request to reopen the claim.
NGA #2 Limited Liability Company v. Rains, 113 Nev. 1151, 946 P.2d 163 (1997).
Summary judgment is inappropriate when there are issues of material fact regarding whether the seller should be estopped from asserting that buyer breached the contract and whether the seller waived the breach by the seller’s silence. After the date required for performance, the seller waited nine months to attempt to cancel the transaction. During those nine months, the seller remained silent about the deadline while continuing to assist in the transaction. These actions could have constituted a waiver of the date required to perform.
Adams v. Moapa Band of Paiute Indians, 991 F.Supp. 1218 (D. Nev. 1997).
The limited waiver of immunity by a tribe’s insurance company only applied to lawsuits filed in tribal court, not in federal court. Therefore, the plaintiff had to exhaust remedies in the tribal court before proceeding in a federal forum.
Hudson v. Horseshoe Club Operating Co., 112 Nev. 446, 916 P.2d 786 (1996).
In an industrial injury case, any reasons for an injured employee’s discharge which are unrelated to the injury—such as misconduct, strike, or economic conditions—are relevant only if the evidence shows that they, rather than the injury, caused the employee’s inability to secure subsequent work. An employer who discharges an injured employee for cause is not liable for that employee’s disability benefits unless the record establishes that the employee’s disability, rather than her discharge, caused her wage loss or inability to obtain work.
Mays v. District Court, 111 Nev. 1172, 901 P.2d 639 (1995).
The Supreme Court issued a writ of mandamus compelling the District Court to credit the petitioner with time for his prior parole and to recalculate his sentence in light of his parole credit. It was fundamentally unfair for the State to refuse to give the petitioner credit for his previous parole, and this continuous refusal constituted vindictive behavior and a violation of the petitioner’s due process rights.
Singer v. Chase Manhattan Bank, 111 Nev. 289, 890 P.2d 1305 (1995).
The Nevada Supreme Court declined to make an exception to the plain language of 15 United States Code § 1666i, which makes a credit card company liable for fraudulent purchases only when those purchases are within 100 miles from the address on the credit card. Additionally, Nevada Revised Statutes 18.010(2)(a) imposes the requirement that a prevailing party, whether plaintiff or defendant, obtain a money judgment before obtaining an award of attorney fees and costs.
Christopher Stuhmer, Inc. v. Centaur Sculpture Galleries, Ltd., Inc., 110 Nev. 270, 871 P.2d 327 (1994).
The best approach for courts to use in interpreting a contract that is ambiguous is to delve beyond the express terms of a written contract and examine the surrounding circumstances to ascertain the true mutual intentions of the parties. Only evidence that has been offered and admitted into evidence can serve to refute adverse evidence. In order for there to be a legal assignment of rights, the obligee must manifest an intention to transfer the right to another person.
Levinson v. District Court, 109 Nev. 747, 857 P.2d 18 (1993).
The recording of a lis pendens against real property is not an available remedy to a plaintiff merely seeking to enforce a personal or money judgment. There must be some claim to the title of the real property to properly record a lis pendens. While a lis pendens can be filed against real property in some cases to avoid fraudulent conveyances or transfers, such a conveyance or transfer was not adequately demonstrated in this case.
Smith’s Food King No. 1 v. Hornwood, 108 Nev. 666, 836 P.2d 1241 (1992).
Under Nevada Rules of Civil Procedure, Rule 63, a successor judge is required to rehear disputed evidence when the original judge has not issued competent findings of fact and conclusions of law. The rationale behind this rule is to prevent judges from passing judgment on the credibility of witnesses they have not seen.
Thompson v. City of North Las Vegas, 108 Nev. 435, 833 P.2d 1132 (1992).
The District Court improperly granted summary judgment because there were genuine issues of material fact regarding whether the landowner’s knew that they could lose title to the subject property, and whether the landowner’s became aware that the subject property had been awarded to the city. Therefore, the landowners did not intentionally waive their rights because there was a genuine issue whether they had full knowledge of all the material facts.
KDI Sylvan Pools, Inc. v. Workman, 107 Nev. 340, 810 P.2d 1217 (1991).
The District Court erred when it certified its grant of summary judgment, which dismissed the plaintiff’s complaint, as final under NRCP 54(b) because the defendant’s unresolved counterclaims against the plaintiff arose from the same set of facts and transactions that gave rise to the plaintiff’s claims. As such, the unresolved counterclaims were too closely related to the plaintiff’s dismissed claims to allow final certification of the dismissal of the complaint. Additionally, there is no statutory right to appeal a decision to stay an execution of summary judgment.
Bivins Construction v. State Contractors Board, 107 Nev. 281, 809 P.2d 1268 (1991).
In a proceeding before the State Contractors Board, Nevada Revised Statutes 233B.123(4) expressly permits cross-examination on any matter, even when the matter was not covered in direct examination. The Board denied a contractor due process of law by limiting the contractor’s cross-examination of a witness. Additionally, the Board does not have the authority to impose damages upon the parties.
Hornwood v. Smith’s Food King No. 1, 107 Nev. 80, 807 P.2d 208 (1991).
In determining compensatory damages for the violation of a shopping center lease, the District Court should measure damages as the difference between the value of a shopping center immediately before and immediately after the breach that caused the injury. Therefore, a proper analysis is the value of the property with the anchor tenant, less the value of the property without the anchor tenant. Prejudgment interest is only allowed where the damage is known or ascertainable at a time prior to entry of judgment, either by reference to amounts fixed by the contract or from established market prices.
Thornton v. Agassiz Construction, Inc., 106 Nev. 676, 799 P.2d 1106 (1990).
Nevada Rules of Civil Procedure, Rule 9(c) does not require a party to specifically plead excuse; only a denial of performance needs to be specifically pled and with particularity. Furthermore, the purchaser in a vendor/construction contract can bring suit prior to paying the full purchase price when the vendor/contractor deviates substantially from the contract specifications.
Charlie Brown Construction Company, Inc. v. City of Boulder City, 106 Nev. 497, 797 P.2d 946 (1990).
Under Boulder City Municipal Code § 11-36-12(A), the city is required to collect a payment bond from a subdivider for public construction to ensure payment to subcontractors. The city code created a self-imposed duty upon Boulder City, and the city’s failure to collect the bond resulted in a meritorious negligence claim against the city.
Buck v. Greyhound Lines, Inc., 105 Nev. 756, 783 P.2d 437 (1989).
The “Good Samaritan” law at Nevada Revised Statutes 41.500, which provides an exemption from liability, is only applicable when an emergency exists and there are injured parties. The critical ingredients of an emergency situation are suddenness, the unexpected, necessity for immediate action, and the lack of time for a measured evaluation of alternative courses of action. In this case, the Good Samaritan law was inapplicable where a car was stalled on a highway, there was no oncoming traffic, and there was no injured party.
Brown v. Capanna, 105 Nev. 665, 782 P.2d 1299 (1989).
In a medical malpractice case, the Nevada Supreme Court affirmed the rule that a plaintiff must demonstrate lack of informed consent through expert medical testimony. A doctor who has not personally performed a particular surgery can, nevertheless, be considered as an expert when testifying about informed consent because the doctor would be aware of the risks and the alternative choices. Where a medical expert is not being asked his expert opinion on the cause of death or on some other factor of causation, the relevant inquiry is not measured by a reasonable degree of medical probability, but whether the defendant did not conform to the customary disclosure practice in the relevant community or to what a reasonable physician would disclose.
Ewing v. Bissell, 105 Nev. 488, 777 P.2d 1320 (1989).
Where there is a mutual mistake of fact in a purchase agreement for real property regarding the actual acreage of the land, and the land was a sale by the acre, as opposed to a sale in gross, an abatement of the purchase price was appropriate to conform to the quantity of land actually received.
Wiltsie v. Baby Grand Corp., 105 Nev. 291, 774 P.2d 432 (1989).
Nevada recognizes the tort of retaliatory discharge when an at-will employee is terminated for reporting his supervisor’s illegal conduct. To find a retaliatory discharge tort, the employee’s firing must violate an established public policy. In this case, no public policy was violated when the employee reported the illegal conduct of his supervisor to the supervisor’s company superiors, instead of to the appropriate government authorities. This action was done in a private or proprietary manner, not a public one, and thus the employee was not protected.
Sutherland v. Gross, 105 Nev. 192, 772 P.2d 1287 (1989).
The Nevada Supreme Court will not set aside findings of fact unless they are clearly erroneous and not supported by any evidence. When a defaulting defendant has a common defense with other co-defendants, and the validity of the plaintiff’s entire cause of action is called into question, a defaulting defendant may rely upon those common defenses made by co-defendants. Accordingly, a plaintiff cannot take judgment by default against a defendant for those particular causes of action when common defenses exist.
Hornwood v. Smith’s Food King No. 1, 105 Nev. 188, 772 P.2d 1284 (1989).
A landlord is entitled to consequential damages resulting from an anchor tenant breaching its lease agreement and the implied covenant of continuous operation. The measure of damages for this situation is equal to the value of the shopping center with the tenant lease less the value of the shopping center without the tenant lease.
Southern Trust Mortgage Company v. K & B Door Company, Inc., 104 Nev. 564, 763 P.2d 353 (1988).
When a mortgage company holds a deed of trust secured by real property, and the deed of trust requires that the mortgage company make obligatory advances to the developer of the property, the advances relate back to the deed of trust because they are obligatory. Because the advances relate back to the deed of trust, subsequently recorded mechanic’s liens do not have superiority over the mortgage company’s claims for the advances.
Flick Theater, Inc., v. City of Las Vegas, 104 Nev. 87, 752 P.2d 235 (1988).
The Las Vegas City Council, in enacting Las Vegas Municipal Code 19.74.040, intended to ban operation of any sexually-oriented business, including existing businesses, located within 1,000 feet of any church or school. The city did not exceed its legislative authority because the ordinances in question did not conflict with the state statute.
Royal West Airways, Inc. v. Valley Bank of Nevada, 103 Nev. 652, 747 P.2d 895 (1987).
Even when a creditor uses non-UCC remedies to attach personal property, the creditor is still required to follow the obligations that Article 9 imposes on secured creditors. In this case, the creditor obtained a court-ordered writ of attachment against an airplane and became a secured party in possession of the security. As such, the creditor should not have the benefit of a perfected security interest while avoiding the obligations of secured creditors under Article 9. Thus, the creditor was liable, as an offset to its judgment, for neglect of the airplane and the change in its market value.
K-Mart Corporation v. Ponsock, 103 Nev. 39, 732 P.2d 1364 (1987).
Contract and punitive damages are permitted when an employer engages in a bad faith discharge of an employee. Whether a bad faith discharge has occurred is a fact-specific inquiry which takes into account, among other things, the size of the employer and the motive for the termination. Tort liability for breach of the implied covenant of good faith and fair dealing occurs when the conduct of the employer goes well beyond the bounds of ordinary liability for breach of contract.
Leonard v. Stoebling, 102 Nev. 543, 728 P.2d 1358 (1986).
The decision of a home owner’s association architectural review committee to permit a two-story addition to a home was arbitrary because the committee failed to take into account the view and aesthetics of the neighbors, as required by statute. Therefore, a mandatory injunction was an appropriate remedy because the monetary value of a view and aesthetics is very difficult to determine.
Campbell v. Campbell, 101 Nev. 380, 705 P.2d 154 (1985).
Any property placed in joint tenancy before July 1, 1979 is only subject to equal division, not equitable division, upon divorce. And, money given during a marriage is presumed to be a gift. This presumption can be rebutted by clear and convincing evidence, which must be something more than the testimony of the moving party.
Brown v. Brown, 101 Nev. 144, 696 P.2d 999 (1985).
In a divorce proceeding, the trial court erred when it granted the wife all the equity in the house because the husband cancelled his life insurance policy. The husband could cancel his life insurance policy because there was no decree directing him to maintain it. Therefore, the husband was entitled to half of the equity in the house.
Southwest Gas Corp. v. Lear, 101 Nev. 120, 693 P.2d 999 (1985).
Nevada Administrative Code 703.775 authorizes the Public Service Commission to reopen a proceeding to take additional evidence before a final order is issued. Where a final order is appealed and remanded back to the Commission, the case is considered to be put back into the same position as if the Commission had not issued a final order.
Williams v. State, 99 Nev. 530, 665 P.2d 260 (1983).
A defendant in a criminal case is entitled, upon request, to a jury instruction on his theory of the case if there is some evidence to support it, no matter how weak or credible the evidence is.
Knox v. Dick, 99 Nev. 514, 665 P.2d 267 (1983).
A witness who testifies during judicial proceedings is not liable for defamatory answers to counsel’s questions. Also, statements made by witnesses in quasi-judicial proceedings are absolutely privileged; therefore, defamatory remarks made during those proceedings are also privileged.
Titanium Metals Corporation of America v. Clark County District Board of Health Air Pollution Control Hearing Board, 99 Nev. 397, 663 P.2d 355 (1983).
The administrative agency abused its discretion by imposing fines upon a corporation running air pollution control equipment when the agency failed to make any findings that the company was not in compliance with the statute.
Cheqer, Inc. v. Painters and Decorators Joint Committee, Inc., 98 Nev. 609, 655 P.2d 996 (1982).
A trial court confronted with cross-motions for summary judgment may be at liberty in most circumstances to determine that the parties have conceded that no material issues of fact remain. The mere filing of cross-motions for summary judgment, however, does not automatically relieve the trial court of its obligations of determining whether there actually are genuine issues of material fact for trial.
Shapiro v. Pavlikowski, 98 Nev. 548, 654 P.2d 1030 (1982).
Personal jurisdiction over an out-of-state defendant is inappropriate where defendant’s conduct consists only of ordering products over the phone. Although personal jurisdiction arises from transacting business and negotiating commercial paper within the state, to have personal jurisdiction, the causes of action must arise from those acts.
Las Vegas Plywood and Lumber, Inc. v. D&D Enterprises, 98 Nev. 378, 649 P.2d 1367 (1982).
The mechanic’s lien statutes are remedial in character and should be liberally construed. Substantial compliance with the statutory requirements of a mechanic’s lien is sufficient to perfect the lien if the property owner is not prejudiced. Following the statute in every respect except posting the lien at the wrong location constitutes substantial compliance where the other party received notification of the lien.
Holmby, Inc. v. Dino, 98 Nev. 358, 647 P.2d 392 (1982).
Where a sales agreement and escrow instructions are not inconsistent with each other, they are considered supplementary and must be read together. Therefore, a provision in the escrow instructions indicating that time is of the essence makes it binding upon all parties.
Branda v. Sanford, 97 Nev. 643, 637 P.2d 1223 (1981).
In determining if words are slanderous and defamatory, the court must look at the words in context with all surrounding words. When viewed in context in which the words were said, if they are susceptible of a defamatory construction, the issue must be submitted to a jury.
Garden Park Townhouse Association v. Homewood Builders, Inc., 97 Nev. 630, 637 P.2d 1214 (1981).
Under the Nevada Rules of Civil Procedure, Rule 41(e) requiring that a case be dismissed if it is not brought to trial within 5 years, the court concluded that a special master’s actions consisting of meeting with lawyers at a building site, inspecting part of the site, and listening to what several unsworn persons had to say about the construction, and writing a letter that was not filed or served on all counsel did not constitute bringing a case to trial.
MacDonald v. Kassel, 97 Nev. 305, 629 P.2d 1200 (1981).
What constitutes the reasonable time period for performance on a contract must be determined from the nature of the agreement and the particular circumstances involved. Therefore, where parties entered into an oral agreement in which the seller would hold title to land and the buyer paid for the land up until the buyer asked for the title, it was not necessarily unreasonable for the buyer to ask for performance of the oral contract 16 years after the agreement was made.
Cottino v. Harrison, 96 Nev. 682, 615 P.2d 246 (1980).
The Supreme Court reversed the dismissal of an amended complaint for reinstatement, back pay, and damages for wrongful termination because the record did not establish that the District Court considered plaintiff’s argument that he had acquired a property interest in his public employment and was entitled to due process before he could be terminated.
Schmidt v. Sadri, 95 Nev. 702, 601 P.2d 713 (1979).
If an affirmative defense is not pled, it is ordinarily deemed waived, and no evidence can be submitted relevant to that issue. However, a party’s failure to object to the introduction of evidence that supports a defense that was not actually pled as an affirmative defense in the answer constitutes an implied consent to the admission of other evidence on that defense. And, a general denial is treated as being sufficient to put matters in issue that arise by logical inference to the allegations of the complaint.
Luciano v. Marshall, 95 Nev. 276, 593 P.2d 751 (1979).
It is a violation of a citizen’s constitutional right to be free from unreasonable search and seizure when a sheriff seizes personal property pursuant to a search order entered “in pursuance of execution” of a civil judgment. NRS 21.050 provides that money judgments shall be enforced by execution; however, nowhere in NRS 21.270–21.340 does it authorize the sheriff to enter a residence to seize the property.
Gunlord Corporation v. Bozzano, 95 Nev. 243, 591 P.2d 1149 (1979).
A motion for summary judgment shall be submitted with supporting and opposing affidavits according to the Nevada Rules of Civil Procedure, Rule 56(e). The affidavits shall set forth facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavit. An affidavit that does not comply with these rules, when it is conclusory rather than factual, and does not reflect personal knowledge of the events, is legally insufficient, and the court may disregard such affidavits.