In Re: Parental Rights as to A.D.L. and C.L.B., Jr. (Nev. Supreme Ct. – Oct. 5, 2017)
In this opinion, the Supreme Court of Nevada considered whether a parent’s Fifth Amendment rights are violated when he or she is required to admit to a criminal act in order to maintain his or her parental rights.
In April 2010, Clark County Department of Family Services (DFS) received an anonymous call through its child abuse hotline alleging that Keaundra’s children were being abused and neglected. The caller alleged that the face of Keaundra’s infant child had been burned. During an interview with a DFS investigator, Keaundra stated that she was the only adult at home when C.L.B., Jr. was burned. Her two children, A.D.L. and C.L.B., Jr., were in the master bedroom while she was preparing for work in the attached bathroom. She had recently ironed her clothes and had placed the iron on her dresser. Keaundra heard the iron fall and when she came out to investigate, A.D.L. told her that C.L.B., Jr. had tried to kiss the iron. Keaundra then called her mother, a nurse, who told her to put ointment on the injury and to take C.L.B., Jr. to the emergency room if the burn blistered.
Following the initial contact with DFS, Keaundra moved her family to Louisiana, where her father was stationed with the U.S. Air Force. Upon learning that Keaundra moved to Louisiana, DFS sought help from U.S. Air Force authorities to gain protective custody of the children. The children were removed from Keaundra’s care, and C.L.B., Jr. was taken to see Dr. Neuman, a physician in Louisiana. Dr. Neuman reported that the injury was well healed and that there was no evidence of abuse.
Continue reading “Are a parent’s Fifth Amendment rights violated when he or she is required to admit to a criminal act in order to maintain his or her parental rights?”
Humphries vs. New York-New York Hotel & Casino, LLC (Nev. Supreme Ct. – Oct. 5, 2017)
This case deals with a patron that seeks to hold a casino civilly liable for injuries they suffered during an altercation with another patron on the casino floor. NRS 651.015 precludes such liability unless the wrongful act that caused the injuries was foreseeable. The statute further provides that a wrongful act is not foreseeable unless the owner or innkeeper failed to exercise due care for the safety of the patron or other person on the premises or had notice or knowledge of prior incidents of similar wrongful acts on the premises. In this case, the district court granted summary judgment in favor of the casino, finding that the casino did not owe a duty to the patrons pursuant to NRS 651.015 because the casino had no “notice or knowledge” the other patron would assault the patrons.
Humphries and Rocha were walking through New York-New York Hotel & Casino’s (NYNY) casino floor at 3:50 a.m. Humphries exchanged pleasantries with a woman who was accompanying another casino patron, Ferrell. Ferrell began conversing with Humphries and allegedly made a vulgar comment to her. Humphries responded and made a spitting motion towards Ferrell and then turned to walk away. Ferrell attacked Humphries, hitting and kicking her multiple times, and allegedly throwing her into a slot machine. Rocha, who was playing a slot machine when the attack began, attempted to intervene and was also hit by Ferrell.
Continue reading “When is a hotel liable for the wrongful acts of a third party?”
Nevada Appellate Courts Advance Opinions for October 5, 2017
MENDENHALL VS. TASSINARI
- Are claims that are brought by the offering party in a second action, and arise out of facts that were discovered after serving the NRCP 68 offer, barred by general principles of claim preclusion or by the very terms of the NRCP 68 offer.
HUMPHRIES VS. NEW YORK-NEW YORK HOTEL & CASINO, LLC
- When does an innkeeper owe a duty of care for on premises injuries caused by third parties because the wrongful act of a third party was foreseeable.
SWEAT (LONNIE) VS. DIST. CT. (STATE)
- Does a defendant who pleads guilty to a lesser charge pursuant to a plea agreement and fails to comply with the terms of that agreement, waive his or her right to be protected from prosecution on a greater charge.
WILLIAMS (JESSICA) VS. STATE, DEP’T OF CORR.
- Do credits earned pursuant to NRS 209.4465 apply to eligibility for parole as provided in NRS 209.4465(7)(b) where the offender was sentenced pursuant to a statute that requires a minimum term of not less than a set number of years, but does not mention parole eligibility.
FREDIANELLI VS. MARTINEZ
- Can an attorney actively enforce a retaining lien.
- Is an affirmative recovery necessary in the retaining lien context.
- Can a retaining lien be reduced to a monetary judgment.
JOHNSON (DONTE) VS. STATE (DEATH PENALTY-PC)
- Must a defendant file a postconviction petition within one year after remittitur issued on direct appeal from his original judgment of conviction where the direct appeal resulted in reversal and remand for another penalty hearing such that his sentences were unsettled.
IN RE: PARENTAL RIGHTS AS TO A.D.L. AND C.L.B., JR.
- Are a parent’s Fifth Amendment rights violated when he or she is required to admit to a criminal act in order to maintain his or her parental rights.
Gordon vs. Geiger (Child Custody) (Nev. Supreme Ct. – Sep. 27, 2017)
In this case, the Supreme Court of Nevada examined a district court’s sua sponte order permanently increasing visitation with the parties’ minor children. The district court based its order on unrecorded interviews the judge conducted independently with the children and an unsubstantiated Child Protective Services (CPS) report that was not admitted into evidence. The Court took this opportunity to provide guidance for when the district court wants to interview a child witness.
Gordon and Geiger divorced in 2011. Pursuant to their divorce decree, both were awarded joint legal custody of their two minor children; Gordon was awarded primary physical custody, and Geiger received limited visitation.
In 2011, before the district court entered the decree of divorce, the judge interviewed the parties’ children with the children’s guardian ad litem present. A return hearing immediately followed. Pursuant to the court minutes from the return hearing, the court ordered that Gordon’s boyfriend was not to physically discipline the children in any way. The district court never entered a written order on this issue.
In early 2014, the district court entered a written order modifying Geiger’s visitation to every other weekend. Subsequently in July, Geiger was arrested and incarcerated for 23 days due to an outstanding warrant for parole violations. Gordon then filed a motion for an order to show cause, alleging that Geiger violated court orders concerning custody and child support. Based on Geiger’s parole violation, among other reasons, Gordon also filed a separate motion to modify custody, which requested sole legal and physical custody, and removal of Geiger’s visitation.
Continue reading “How must a court conduct an interview of a child witness?”
Nevada Appellate Courts Advance Opinions for September 27, 2017
STATE ENGINEER VS. EUREKA CTY.
- When does a district court exceed its authority when an appellate court remands a case to the district court.
STATE, DEP’T. OF TRANSP. VS. DIST. CT. (NASSIRI)
- Did the Nevada Department of Transportation (NDOT) breach a settlement agreement or its implied duty of good faith and fair dealing by building an overpass adjacent to a landowner’s property.
- When is a unilateral mistake claim time-barred by the statute of limitations.
GORDON VS. GEIGER (CHILD CUSTODY)
- Did the district court violate a parent’s due process rights when it changed the terms of custody without sufficient notice to the parent.
- What are the proper procedures when the district court wants to interview a child witness.
FORD MOTOR CO. VS. TREJO
- Should Nevada adopt the risk-utility analysis for determining whether a defendant is liable for a design defect under a strict product liability theory.
ADELSON VS. HARRIS (NRAP 5)
- Does a hyperlink to source material about judicial proceedings in an online petition suffice to qualify as a report for purposes of applying the common law fair report privilege.
- Did Nevada’s anti-strategic litigation against public participation (“anti-SLAPP”) statute, NRS 41.653-.670, as that statute was in effect prior to the most recent amendments in 2013, cover speech that seeks to influence an election but that is not addressed to a government agency.
HIGH NOON AT ARLINGTON RANCH HOMEOWNERS ASS’N VS. DIST. CT. (D.R. HORTON, INC.)
- Does a homeowners’ association have standing to represent (a) unit owners who purchase their units after the litigation commences, and (b) unit owners who sell their units after the litigation commences.
Franchise Tax Bd. vs. Hyatt (Nev. Supreme Ct. – Sep. 14, 2017)
In 1998, inventor Gilbert Hyatt sued the Franchise Tax Board of the State of California (FTB) seeking damages for intentional torts and bad-faith conduct committed by FTB auditors during tax audits of Hyatt’s 1991 and 1992 state tax returns. After years of litigation, a jury awarded Hyatt $139 million in damages on his tort claims and $250 million in punitive damages. In this appeal, the Supreme Court of Nevada determined, among numerous other issues, whether medical records are mandatory in order to establish a claim for intentional infliction of emotional distress (IIED).
In 1993, after reading a newspaper article regarding Hyatt’s lucrative computer-chip patent and the large sums of money that Hyatt was making from the patent, a tax auditor for FTB decided to review Hyatt’s 1991 state income tax return. The return revealed that Hyatt did not report, as taxable income, the money that he had earned from the patent’s licensing payments and that he had only reported 3.5 percent of his total taxable income for 1991. Hyatt’s tax return showed that he had lived in California for nine months in 1991 before relocating to Las Vegas, Nevada, but Hyatt claimed no moving expenses on his 1991 tax return. Based on these discrepancies, FTB opened an audit on Hyatt’s 1991 state income tax return.
Continue reading “Are medical records necessary to establish a claim for intentional infliction of emotional distress (IIED)?”
Ditech Financial, LLC vs. Buckles (Nev. Supreme Ct. – Sep. 14, 2017)
NRS 200.620 prohibits a person from recording a telephone call unless both parties participating in the call consent to the recording. In response to a certified question submitted by the United States District Court for the District of Nevada, the Supreme Court of Nevada considered whether NRS 200.620 applies to telephone recordings made by a party outside Nevada who uses equipment outside Nevada to record telephone conversations with a person in Nevada without that person’s consent.
The original proceeding arose out of a class action suit brought by Sanford Buckles against Ditech Financial LLC in the United States District Court for the District of Nevada. Ditech, a Delaware limited liability company, is a home mortgage servicer that was headquartered in Minnesota at the time Buckles initiated the underlying litigation. Although Ditech is now headquartered in Florida, it has customer call centers equipped to record telephone calls in Arizona and Minnesota. Buckles is a Nevada resident whose home mortgage is serviced by Ditech. In his complaint, Buckles alleged Ditech violated NRS 200.620 by unlawfully recording certain telephone conversations without Buckles’s consent.
Continue reading “Does Nevada law prohibit an out of state party from secretly recording their telephone conversation with someone in Nevada?”
Nevada Appellate Courts Advance Opinions for September 14, 2017
FACKLAM VS. HSBC BANK USA
- Does NRS 11.190(1)(b)’s statute of limitations for contract actions apply to nonjudicial foreclosures.
DITECH FINANCIAL, LLC VS. BUCKLES
- Does NRS 200.620, which requires both parties to consent to the recording of a telephone call, apply to the recording of interstate calls when the act of recording takes place outside Nevada.
THOMAS (LACY) VS. DIST. CT. (STATE)
- When a defendant requests a mistrial, does double jeopardy bar reprosecution when a prosecutor intentionally proceeds in a course of egregious and improper conduct that causes prejudice to the defendant.
PROPERTY PLUS INV.’S, LLC VS. MORTG. ELEC. REGISTRATION SYS., INC.
- Is an HOA limited to only one superpriority lien per parcel of property forever.
- Does an HOA lien survive bankruptcy even though the homeowner’s personal obligation is extinguished upon a Chapter 7 discharge.
IN RE: DISH NETWORK DERIVATIVE LITIG. C/W 69012
- What is the appropriate legal standard for a district court’s consideration of a company’s board of directors created special litigation committee’s (SLC) motion to defer to the SLC’s recommendation that derivative claims should be dismissed.
O.P.H. OF LAS VEGAS, INC. VS. OREGON MUT. INS. CO.
- Does NRS 687B.360 require an insurance policy cancellation notice to contain a statement of a policyholder’s right to request additional information to be effective.
- Under Nevada law, does an insurance broker who obtains an insurance policy for a client have a duty to monitor the client’s premium payments and to alert the client when the policy is about to be canceled for nonpayment of premiums.
PARAMETRIC SOUND CORP. VS. DIST. CT. (RAKAUSKAS)
- Do shareholders lack standing to sue a corporation and its directors because the shareholders’ claims are derivative, not ones asserting direct injury.
PALIOTTA VS. STATE, DEP’T OF CORRECTONS
- Did the State’s complete denial of an inmate’s request for either an Egyptian or kosher diet substantially burden the exercise of the inmate’s religious beliefs.
FRANCHISE TAX BD. VS. HYATT
- Does the exception to government immunity for intentional torts and bad faith conduct survive the Nevada Supreme Court’s adoption of the federal test for discretionary function immunity.
- Based on comity, is it reasonable to provide the Franchise Tax Board of the State of California (FTB) with the same protection of California law, to grant FTB immunity from punitive damages.
- Are medical records mandatory in order to establish a claim for intentional infliction of emotional distress.
City of Sparks vs. Reno Newspapers, Inc. (Nev. Supreme Ct. – Aug. 3, 2017)
Persons seeking to operate medical marijuana establishments (MMEs) must register with the Department of Health and Human Services’ Division of Public and Behavioral Health (Division), NRS 453A.322(1), and, if located in a jurisdiction so requiring, obtain a business license, NRS 453A.326(3). Reno Newspapers, Inc., which owns and operates the Reno Gazette-Journal (RGJ), a daily newspaper, asked the City of Sparks to disclose copies of the business licenses of persons operating MMEs in the City. In response, the City produced the business licenses, but redacted the licensees’ identities from the documents. The RGJ demanded unredacted copies of the business licenses, and the City denied the subsequent request.
Thereafter, the RGJ filed a petition for a writ of mandamus in the district court to compel the City to disclose the redacted information. The district court held that the petition was procedurally proper and concluded that the City had a duty under the Nevada Public Records Act to disclose the identities of the business license holders, which duty was not exempted by NAC 453A.714’s confidentiality provision, granted the petition. The City appealed.
Continue reading “Is the identity of a medical marijuana establishment business license holder confidential?”
Gardner vs. Henderson Water Park, LLC (Nev. Supreme Ct. – Aug. 3, 2017)
The issue is to what extent is a member of a limited liability company (LLC) protected in a negligence-based tort action against the LLC.
After their son, L.G., suffered severe injuries in a near drowning in the wave pool at Cowabunga Bay, the Gardners brought suit against Henderson Water Park, LLC, which does business as Cowabunga Bay Water Park (the Water Park), and its two managing members, West Coast Water Parks, LLC, and Double Ott Water Holdings, LLC (the member-LLCs). Among other allegations, the Gardners alleged that the negligence of the Water Park and member- LLCs contributed to L.G.’s injuries because of the Water Park’s inadequate staffing of lifeguards.
The member-LLCs eventually moved for summary judgment, which the district court granted. Specifically, the district court dismissed the member-LLCs as improper parties pursuant to NRS 86.381. The district court certified its order as final under NRCP 54(b), and the Gardners appealed.
On appeal, the Gardners argued the district court erred in concluding that NRS 86.371 and NRS 86.381 shield the member-LLCs from suit because the Gardners sought to pursue a direct claim against the member-LLCs for the member-LLCs’ own tortious conduct in negligently operating the Water Park.
Continue reading “To what extent is a member of an LLC protected in a negligence claim against the LLC?”