Month: September 2017

How must a court conduct an interview of a child witness?

Posted on by Jeff Jaeger

Child Witness

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.

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Nevada Appellate Courts Advance Opinions for September 27, 2017

Posted on by Jeff Jaeger

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.

Visit the Nevada Appellate Report for more legal news.

Are medical records necessary to establish a claim for intentional infliction of emotional distress (IIED)?

Posted on by Jeff Jaeger

intentional infliction of emotional distress

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.

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Does Nevada law prohibit an out of state party from secretly recording their telephone conversation with someone in Nevada?

Posted on by Jeff Jaeger

Recording Phone Calls

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.

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Nevada Appellate Courts Advance Opinions for September 14, 2017

Posted on by Jeff Jaeger

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.

Visit the Nevada Appellate Report for more legal news.