Month: October 2015

Is the cancellation of a water permit subject to judicial review?

Posted on by Jeff Jaeger

Benson v. State Engineer (Nev. Supreme Ct. – Sep. 24, 2015)

The issue is whether a party aggrieved by the cancellation of her water permit must exhaust administrative remedies with the State Engineer when the State Engineer is not statutorily authorized to provide the party’s preferred remedy.

Joseph Rand purchased property in Eureka County, which he used for farming. A water permit with an appropriation date of 1960 benefited the property. Rand died on October 17, 2008, survived by his wife, Ellen. That same month, the Joseph L. and Ellen M. Rand Revocable Living Trust was created, and the trust managed the farming property. An agent, presumably acting on behalf of the trust, applied for a water right permit at a new well head location with the State Engineer on December 10, 2008. According to the application, the agent intended to divert water from an underground source via a newly drilled well. The new water rights were necessary because the previous well did not produce sufficient water. The State Engineer conditionally authorized the new permit to appropriate 632 acre-feet annually for irrigation and domestic use from the Diamond Valley Hydrographic Basin. The permit required proof of completion of the new well, proof of beneficial use of the water, and a supporting map to be filed with the State Engineer within one year. The permit reflected the original appropriation date of 1960.

Due to financial constraints, the trust was unable to finish drilling the well by 2010. Consequently, Ellen, on behalf of the trust, sought an extension to complete the work and file the requisite proof with the State Engineer. The State Engineer granted the trust’s request and extended the time for completion by one year. The State Engineer granted the same request again in 2011 and 2012.

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When must a summons be served in a child protective custody proceeding?

Posted on by Jeff Jaeger

Joanna T. v. Eighth Jud. Dist. Ct. (Nev. Supreme Ct. – Sep. 24, 2015)

The issue is whether NRCP 4(i)’s requirement that a summons be served within 120 days applies in NRS Chapter 432B proceedings.

Joanna T.’s daughter was removed from the care of Joanna’s mother, Sheila T., in December 2012 while Joanna was in jail. An abuse-and-neglect petition was filed alleging that the child was in need of protection and naming both Joanna and Sheila, but no summons was issued as to Joanna and she did not appear at the adjudicatory hearing. The abuse-and-neglect petition was orally sustained by a domestic master and both Joanna and Sheila were provided with case plans. Sheila complied with her case plan, and the child was returned to her custody in June 2013. In the order returning the child to Sheila, Joanna was allowed supervised visitation with the child until she complied with her case plan or until further order of the court.

Then, in March 2014, Joanna filed a motion to set aside the master’s oral recommendation to sustain the abuse-and-neglect petition because Joanna had never received a summons notifying her of the adjudicatory hearing. The juvenile court granted the motion, directed the State of Nevada to issue a summons, and set a new adjudicatory hearing. A summons was thereafter served on Joanna on April 24, 2014, 486 days after the abuse-and-neglect petition was filed. Joanna moved to dismiss the petition asserting that the summons was untimely under NRCP 4(i) because it was issued more than 120 days after the abuse-and-neglect petition was filed. The juvenile court denied the motion.

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Must a medical expert’s affidavit accompany a medical malpractice complaint at the time of filing?

Posted on by Jeff Jaeger

Baxter v. Dignity Health (Nev. Supreme Ct. – Sep. 24, 2015)

This case arises from an order dismissing a medical malpractice action under NRS 41A.071. Adopted in 2002 to curb baseless malpractice litigation, NRS 41A.071 provides that a district court shall dismiss a medical malpractice action if the action is filed without an affidavit or declaration from a medical expert supporting the allegations of malpractice. In this case, the plaintiff consulted with a medical expert, from whom he obtained the supporting declaration required, before filing suit. For reasons unclear, the plaintiff did not attach the declaration to the complaint. Instead, he filed the complaint by itself, then filed the separately captioned declaration the next morning. The complaint incorporated the declaration by reference, and vice versa, and the two documents were served together on the defendants before the statute of limitations ran. The issue is whether NRS 41A.071 required dismissal of the complaint.

Baxter is a type 1 diabetic who presented to the emergency room in August 2012 with an acute infection. He alleged that the respondent hospital and doctors committed medical malpractice by misdiagnosing his infection as viral, not bacterial. Baxter further alleged that, had the correct diagnosis been timely made, his cervical spine abscess should and could have been successfully treated with antibiotics. The delay in proper diagnosis and treatment has allegedly left him a ventilator-dependent tetraplegic who will require 24-hour nursing care for the rest of his life.

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When can a court appoint a general guardian for a child?

Posted on by Jeff Jaeger

In re Guardianship of N.M. (Nev. Supreme Ct. – Sep. 24, 2015)

NRS 125A.335 establishes a district court’s temporary emergency jurisdiction to protect a child in Nevada from mistreatment or abuse. The issues are whether a district court exercising temporary emergency jurisdiction may appoint a general guardian pursuant to NRS 125A.335(2) when (1) no court in another jurisdiction has entered an applicable custody order or commenced custody proceedings, and (2) Nevada has become the child’s home state.

Appellant, a Mexican citizen, gave birth to N.M. in California in 2007. Later that year, appellant and N.M. moved to Mexico. In 2008, appellant left N.M. in the care of N.M.’s maternal grandparents, who were also in Mexico. N.M.’s grandmother and two agents from Mexico’s National System for Integral Family Development (DIF) executed a document stating that the grandparents had custody of N.M. (the 2008 DIF document).

In 2009 or 2010, N.M.’s maternal aunt (the Aunt) and respondent, her then-fiancé or boyfriend, began caring for N.M. Respondent is a United States citizen. In August 2011, appellant signed a document purportedly giving the Aunt and respondent custody of N.M.

In September 2012, respondent moved N.M. to Nevada after his relationship with the Aunt ended. Appellant’s half-sister then went to respondent’s home at night and attempted to remove N.M. In response, respondent filed a verified emergency petition in November 2012 for appointment as N.M.’s temporary general guardian. The district court appointed respondent as N.M.’s temporary general guardian.

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When is an insurer obligated to provide independent counsel for its insured?

Posted on by Jeff Jaeger

State Farm Mut. Auto. Ins. Co. v. Hansen (Nev. Supreme Ct. – Sep. 24, 2015)

The Federal District Court for the District of Nevada certified two questions to the Supreme Court of Nevada concerning Nevada’s conflict-of-interest rules in insurance litigation. The first question asked whether Nevada law requires an insurer to provide independent counsel for its insured when a conflict of interest arises between the insurer and the insured. The second asked whether, if the first question is answered affirmatively, the court would find that a reservation of rights letter creates a per se conflict of interest.

While leaving a house party, Hansen was injured in an altercation with other guests. The other party guests tried to prevent Hansen and his friends from leaving the party by sitting on or standing around their vehicle. Eventually Hansen and his friends were able to leave the party in their vehicle, but they later had to stop at the gated exit of the residential subdivision. While stopped at the gate, the vehicle of another party guest, Aguilar, struck the vehicle in which Hansen was riding. Hansen filed a complaint against Aguilar and others in Nevada state district court alleging both negligence and various intentional torts.

Aguilar was insured by State Farm Mutual Automobile Insurance Company. State Farm agreed to defend Aguilar under a reservation of rights. The reservation of rights letter reserved the right to deny coverage for liability resulting from intentional acts and punitive damages.

Aguilar admitted to negligently striking the other vehicle, and the district court granted summary judgment in favor of Hansen on the negligence claim. Aguilar then agreed to a settlement with Hansen, in which he assigned his rights against State Farm to Hansen.

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What determines if a contract’s forum selection clause is permissive or mandatory?

Posted on by Jeff Jaeger

Am. First Fed. Credit Union v. Soro (Nev. Supreme Ct. – Sep. 24, 2015)

The issue is whether a contract clause stating that the parties “submit themselves to the jurisdiction of” another state results in a mandatory forum selection clause requiring dismissal of a Nevada action.

In 2002, America First Federal Credit Union (the credit union) loaned $2 9 million, secured by real property in Mesquite, Nevada, to borrowers for the purchase of a liquor/mini- mart. The borrowers defaulted, and the credit union held a trustee’s sale, resulting in a deficiency on the loan balance of approximately $2.4 million. The Utah-based credit union sued the borrowers in Clark County to recover the deficiency.

The borrowers moved to dismiss the action under NRCP 12(b)(1), arguing that the credit union could not sue to recover the deficiency in Nevada and citing several clauses in the Commercial Promissory Note and Business Loan Agreement to support their argument. An Applicable Law clause in the loan agreement stated that “[t]his Agreement (and all loan documents in connection with this transaction) shall be governed by and construed in accordance with the laws of the State of Utah.” The loan agreement also contained the following: “Jurisdiction. The parties agree and submit themselves to the jurisdiction of the courts of the State of Utah with regard to the subject matter of this agreement.” A clause in the note stated: “If there is a lawsuit, Borrower(s) agrees to submit to the jurisdiction of the court in the county in which Lender is located.”

The district court agreed with the borrowers and granted the motion to dismiss. The district court found that the note and loan agreement contain language which clearly expressed the parties’ intent to submit litigation relating to the Agreement and the Note, to the jurisdiction of the State of Utah. The credit union appealed.

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