2nd Quarter - 2012 Advanced Opinions
Tri-County Equipment & Leasing v. Klinke     Thursday, 28 June 2012
Evidence of the actual amount of workers’ compensation benefits paid should have been admitted.
128nevadvopno33.pdf.pdf
Text
In re George J.     Thursday, 28 June 2012
NRS 62B.335 only applies to delinquent acts and therefore does not apply to acts that are “deemed not to be a delinquent act” under NRS 62B.330(3).  Thus, if the case is excluded from the juvenile court’s jurisdiction under NRS 62B.330(3), then the juvenile court does not obtain jurisdiction by virtue of NRS 62B.335.  Here, the juvenile court lacked jurisdiction under NRS 62B.330(3)(e)(1).
128nevadvopno32.pdf.pdf
Text
State v. Barren     Thursday, 28 June 2012
128nevadvopno31.pdf.pdf
Text
Physicians Insurance Co. v. Williams     Thursday, 28 June 2012
interpretation of a claims-made professional liability insurance policy
128nevadvopno30.pdf.pdf
Text
Choy v. Ameristar Casinos, Inc.     Thursday, 28 June 2012
En Banc Reconsideration
128nevadvopno29.pdf.pdf
Text
Davis v. Beling     Thursday, 14 June 2012
In this case the Supreme Court addressed several issues arising from a dispute over a series of property transactions. Plaintiffs sued Defendants under various theories of liability, including breach of contract and fraud. Defendants countersued for, inter alia, negligent misrepresentation and fraud by concealment. Defendants also brought a claim against Plaintiffs under Nev. Rev. Stat. 645.257, which provides a statutory cause of action for the victim of a real estate licensee's breach of the various duties imposed by Nev. Rev. Stat 645.252-.254. The Supreme Court affirmed in part and reversed in part the district court, holding (1) compromise offers are not admissible for the purpose of demonstrating a failure to mitigate damages under Nev. Rev. Stat. 48.105; (2) although Nev. Rev. Stat. 645.251 does not, in all instances, shield real estate licensees from common law forms of liability, it precludes such liability when the type of conduct complained of is covered by sections 645.252-.254; and (3) punitive damages may not be recovered under section 645.257, but compensatory damages are recoverable under the statute in accordance with the measure of damages that appropriately compensates the injured party for the losses sustained as a result of the real estate licensee's violations. Remanded.
128nevadvopno28.pdf.pdf
Text
Ryan’s Express v. Amador Stage Lines     Thursday, 14 June 2012
In this case Supreme Court settlement judge Nicholas Frey was disqualified from representing Respondent Amador Stage Lines, In. Pursuant to Nevada Rules of Professional Conduct 1.12(c), Frey's disqualification was imputed to the remaining members of his law firm, Woodburn and Wedge, but the parties disagreed on whether screening could be utilized to cure the imputed disqualification. Before the Supreme Court was Appellant Ryan's Express Transportation Services, Inc.'s motion to disqualify Woodburn and Wedge from representing Amador in this appeal. The Court deferred ruling on the motion to disqualify, concluding that more facts were necessary for the Court to consider the sufficiency of Woodburn and Wedge's screening measures and weather screening could be used to cure imputed disqualification in this situation. Remanded for an evidentiary hearing and written findings of fact and conclusions of law regarding the adequacy of the screening.
128nevadvopno27.pdf.pdf
Text
FGA, Inc. v. Giglio     Thursday, 14 June 2012
At issue in this appeal was whether the "mode of operation" approach to premises liability, under which the plaintiff does not have to prove the defendant's knowledge of a particular hazardous condition if the plaintiff can prove that the nature of the defendant's business tends to create a substantial risk of the type of harm the plaintiff suffered, extends beyond the self-service context. The Supreme Court held (1) because the mode of operation approach is premised on the idea that business owners should be held responsible for the risks that their choice to have customers serve themselves creates, it does not extend to "sit-down" restaurants; (2) the district court abused its discretion by giving a mode of operation instruction in this case; and (3) the district court abused its discretion by excluding certain evidence. Remanded.
128nevadvopno26.pdf.pdf
Text
Pack v. LaTourette     Thursday, 31 May 2012
            In this appeal, after summarily concluding that the district court erroneously dismissed with prejudice a third-party complaint for equitable indemnity and contribution on statute of limitations grounds, we address three alternative arguments raised in the motion to dismiss.  To begin, we discuss whether the claim for equitable indemnity fails as a matter of law based on the lack of any preexisting relationship between the third parties and the third-party plaintiffs’ active negligence.  Next, we address whether dismissal of a contribution claim is proper if the party seeking contribution has not yet paid toward a judgment.  Finally, we consider whether NRS 41A.071’s expert affidavit requirement applies to claims for contribution that are based in medical malpractice.
            As for the first argument, because there was no preexisting relationship between the parties in this case, and because the claims against the third-party plaintiffs were based on their active negligence, the equitable indemnity claim lacked merit and was properly dismissed.  Second, we conclude that a party need not pay toward a judgment before bringing a claim for contribution.  As such, the third-party contribution claim was not properly dismissed on that ground.  Finally, we conclude that when a claim for contribution is contingent upon a successful showing of medical malpractice, a claimant must satisfy the expert affidavit requirement of NRS 41A.071.  Thus, the third-party plaintiffs’ failure to attach an expert affidavit warranted dismissal of their complaint, but such dismissal should have been without prejudice.
128nevadvopno25.pdf.pdf
Text
Whitehead v. State     Thursday, 31 May 2012
DUI
Judgment of Conviction
            Whitehead contends that the panel overlooked NRS 176.105(1) and whether a judgment of conviction that imposes restitution but leaves the amount of restitution to be determined is final for purposes of triggering the one-year period under NRS 34.726 for filing a post-conviction petition for a writ of habeas corpus.  Having reviewed the petition and the State’s answer, we conclude that reconsideration is warranted.  See NRAP 40A(a).
            When a district court determines that restitution is appropriate, the judgment of conviction must set forth the amount and terms of restitution.  NRS 176.105(1); see also NRS 176.033(1)(c).  We conclude that a judgment of conviction that imposes restitution but does not set an amount of restitution, in violation of Nevada statutes, is not final and therefore does not trigger the one-year time limit for filing a post-conviction petition for a writ of habeas corpus.  As Whitehead’s post-conviction petition is timely under this analysis, we reverse and remand for further proceedings on the merits of the petition.
128nevadvopno24.pdf.pdf
Text
Winn v. Sunrise Hospital & Medical Center     Thursday, 31 May 2012
Statute of Limitations
Medical Malpractice
Nevada’s statute of limitations governing medical malpractice actions is NRS 41A.097.  Subsection 2 of that statute provides that such actions must be filed within three years of the injury date and within one year of the injury’s discovery.  Both deadlines are tolled under subsection 3, however, when the health care provider has concealed information upon which the action is based.
            In this appeal, we consider three issues regarding NRS 41A.097 subsections 2 and 3.  First, we consider the circumstances in which a district court may appropriately determine, as a matter of law, the accrual date for subsection 2’s one-year discovery period.  Second, we consider the meaning of the term “concealed” in subsection 3 and examine what a plaintiff must establish in order to warrant a tolling of subsection 2’s limitation periods.  Finally, we consider whether one defendant’s alleged concealment of records can be imputed to other defendants for purposes of tolling subsection 2’s limitation periods as to those defendants.
128nevadvopno23.pdf.pdf
Text
In re State Engineer Ruling No. 5823     Thursday, 31 May 2012
Judicial Review Water Rights
128nevadvopno22.pdf.pdf
Text
Club Vista Financial Servs. v. Dist. Ct.     Thursday, 17 May 2012
Under the Shelton analysis, the party seeking to depose opposing counsel must demonstrate that the information sought cannot be obtained by other means, is relevant and nonprivileged, and is crucial to the preparation of the case.  Id. at 1327.  Because the district court did not analyze these factors, we grant the writ petition in part and direct the district court to evaluate whether, applying the Shelton factors, real parties in interest may depose petitioners’ former trial attorney.
128nevadvopno21.pdf.pdf
Text
Schettler v. RalRon Capital Corporation     Thursday, 03 May 2012
While FIRREA’s jurisdictional bar divests a district court of jurisdiction to consider claims and counterclaims asserted against a successor in interest to the FDIC not first adjudicated through FIRREA’s claims process, it does not apply to defenses or affirmative defenses raised by a debtor in response to the successor in interest’s complaint for collection.
Also - Federal Holder In Due Course
128nevadvopno20.pdf.pdf
Text