Month: December 2017

What is a “deadly weapon” within the context of battery?

Posted on by Jeff Jaeger

hand holding a screwdriver

Rodriguez (Daniel) vs. State (Nev. Supreme Ct. – Dec. 28, 2017)

At issue in this appeal was the definition of “deadly weapon” within the context of battery. Rodriguez contended the jury instruction that led to his conviction for battery with the use of a deadly weapon was erroneous because the object he used to stab his victim – a screwdriver – was not designed to be inherently dangerous.

Rodriguez used a screwdriver to stab a 66-year-old man in the neck. The screwdriver was four to six inches long. It broke through the victim’s skin, causing bleeding and one night of hospitalization. The State charged Rodriguez with battery with the use of a deadly weapon, causing substantial bodily harm, against a person at least sixty years of age.

Prior to trial, Rodriguez repeatedly contested the deadly weapon allegation, arguing that a screwdriver could not meet the narrow definition of deadly weapon he claimed applied to 200.481(2)(e), which governs the crime of battery with the use of a deadly weapon. The district court rejected Rodriguez’s motions to dismiss the deadly weapon allegation.

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Nevada Appellate Courts Advance Opinions for December 28, 2017

Posted on by Jeff Jaeger

Nevada Appellate Courts Advance Opinions for December 28, 2017

MCCROSKY VS. CARSON TAHOE REG’L MED. CTR.

  • Under what circumstances can a hospital be vicariously liable for the alleged negligence of a doctor who works at the hospital as an independent contractor.
  • Can evidence of Medicaid payments made on behalf of a plaintiff be introduced in a medical malpractice action.

BOCA PARK MARKETPLACE SYNDICATIONS GRP., LLC VS. HIGCO, INC.

  • Does the doctrine of claim preclusion prevent a tenant from suing its landlord for contract damages after having won an earlier suit against the landlord for declaratory judgment, where both suits concern the same underlying facts.

BROWN (WILLIS) VS. DIST. CT. (STATE)

  • What is the standard for determining indigency for the appointment of counsel for purposes of Widdis.
  • Must an indigent defendant request a sum certain before a motion for defense services at public expense can be considered or granted

SEGOVIA, PA-C VS. DIST. CT. (DUDA)

  • Do the 2015 Legislature amendments, adding physician assistants to NRS 41A.017, apply retroactively so as to cap their damages in medical malpractice actions.

EUREKA CTY. VS. DIST. CT. (SADLER RANCH, LLC)

  • Are junior water rights holders entitled to notice of and an opportunity to participate in a district court’s consideration of a curtailment request.

RODRIGUEZ (DANIEL) VS. STATE

  • What is the definition of “deadly weapon” within the context of battery.

HAWKINS VS. DIST. CT. (GGP MEADOWS MALL)

  • What should a district court  consider when awarding attorney fees sought for work done by a disqualified firm.

PECK VS. VALLEY HOSP. MED. CTR.

  • Does either statutory res ipsa loquitur or the common knowledge res ipsa loquitur doctrine provide an exception to the expert affidavit requirement for a medical malpractice complaint.
  • Is NRS 41A.071 unconstitutional under the Equal Protection Clause or Due Process Clause, facially, or as applied to inmates or indigent persons.

Visit the Nevada Appellate Report for more legal news.

Nevada Appellate Courts Advance Opinions for December 26, 2017

Posted on by Jeff Jaeger

Nevada Appellate Courts Advance Opinions for December 26, 2017

ARCELLA VS. ARCELLA (CHILD CUSTODY)

  • What weight should a court afford to one parent’s objection to a child receiving a religious education.

STATE, DEP’T. OF BUS. AND INDUS., FIN. INST. DIV. VS. DOLLAR LOAN CTR., LLC

  • Can a payday loan licensee sue to collect on the recovery of a loan made for the purpose of refinancing prior loans under NRS 604A.480(2).

FRANCHISE TAX BD. VS. HYATT

  • Does the exception to immunity for intentional torts and bad-faith conduct survive the Supreme Court of Nevada’s adoption of the federal discretionary-function immunity test.
  • Is the Franchise Tax Board of the State of California (FTB) entitled to the $50,000 statutory cap on damages a similarly situated Nevada agency would be entitled to in similar circumstances.
  • Is it reasonable to provide FTB with the same protection of California law, to the extent that it does not conflict with Nevada law, to grant FTB immunity from punitive damages.

Visit the Nevada Appellate Report for more legal news.

Nevada Appellate Courts Advance Opinions for December 21, 2017

Posted on by Jeff Jaeger

Nevada Appellate Courts Advance Opinions for December 21, 2017

ARCHON CORP. VS. DIST. CT. (HABERKORN)

  • When is it appropriate for the Supreme Court of Nevada to grant extraordinary relief in the form of advisory mandamus.

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Is illegally obtained evidence admissible in a custody proceeding?

Posted on by Jeff Jaeger

Vintage photograph of women with headset listening to a recording

Abid vs. Abid (Child Custody) (Nev. Supreme Ct. – Dec. 7, 2017)

In this child custody proceeding, a father surreptitiously recorded his child and ex-wife’s conversations by hiding a recording device in the child’s backpack. Because neither the child nor the mother consented to this recording, the father’s actions likely violated NRS 200.650, which prohibits the surreptitious recording of nonconsenting individuals’ private conversations. The question presented is whether the district court abused its discretion by providing the recordings to a psychologist appointed by the court to evaluate the child’s welfare.

Sean and Lyudmyla Abid divorced in 2010. Their stipulated divorce decree awarded them joint legal and joint physical custody of their one-year old child. In 2015, Sean moved to modify those terms to get primary physical custody.

On at least two separate occasions, Sean placed a recording device in the child’s backpack as the child traveled to Lyudmyla’s home. The child and Lyudmyla were unaware of the device, and neither consented to Sean recording their conversations. Sean then edited the recordings, removed what he claimed to be irrelevant material, and destroyed the originals. Claiming that the recordings demonstrated Lyudmyla’s attempts to manipulate the child, Sean moved to admit them into evidence in the custody proceeding. Lyudmyla objected on grounds that Sean violated NRS 200.650 in recording her and the child’s private conversations.

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Nevada Appellate Courts Advance Opinions for December 14, 2017

Posted on by Jeff Jaeger

Nevada Appellate Courts Advance Opinions for December 14, 2017

STATE, DEP’T OF HEALTH AND HUMAN SERV.’S VS. SAMANTHA INC.

  • Is the denial of a medical marijuana dispensary application subject to judicial review.

SHUE (JOSHUA) VS. STATE

  • Does NRS 200.710 permit a separate conviction for each minor used in a visual presentation depicting sexual conduct of a child.
  • Does NRS 200.730 allow a person to be charged for each image of child pornography they possess or for each instance that a person possessed child pornography.
  • Do Nevada’s statutes barring the sexual portrayal of minors violate the First Amendment of the United States Constitution or the Due Process Clause of the Fourteenth Amendment of the United States Constitution.

Visit the Nevada Appellate Report for more legal news.

Is Nevada’s medical marijuana registry unconstitutional?

Posted on by Jeff Jaeger

Is Nevada’s medical marijuana registry unconstitutional?

Doe vs. State, Legislature of the 77th Session (Nev. Supreme Ct. – Dec. 7, 2017)

In November 2000, the Nevada Constitution was amended to allow the possession and use of marijuana for the treatment or alleviation of various medical conditions. This amendment also required the Legislature to establish a registry of patients who were authorized to use marijuana for medical purposes. As a result, the Legislature enacted Assembly Bill 453, allowing registry identification cardholders to use medical marijuana without fear of state prosecution for certain marijuana-related offenses. Subsequently, the Legislature established two fees to defray the costs of administering the registration program: an application fee and a processing fee. In this appeal, the Supreme Court of Nevada examined whether Nevada’s medical marijuana registry violates the Due Process, Equal Protection, or Self-Incrimination Clauses of the United States or Nevada Constitutions.

In 2015, appellant John Doe applied for, and received, a registry identification card after his doctor recommended he try medical marijuana to treat his migraine headaches. Doe subsequently filed suit against the Nevada Legislature, the Governor, and the Department of Health and Human Services (the DHHS) (collectively, respondents). In particular, Doe argued that the medical marijuana registry and its associated fees violated his due process and equal protection rights, and his right against self-incrimination. Doe also argued that the DHHS committed fraud and was unjustly enriched by the registration fees.

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Nevada Appellate Courts Advance Opinions for December 7, 2017

Posted on by Jeff Jaeger

Nevada Appellate Courts Advance Opinions for December 7, 2017

MULLNER (TROY) VS. STATE

  • Can a court consider felony convictions originating from juvenile offenses in habitual criminal sentencing.

IN RE: PARENTAL RIGHTS AS TO T.L.

  • When does a parent lack standing to challenge a court’s placement decision following the termination of his or her parental rights.

AGWARA VS. STATE BAR OF NEVADA

  • Can an attorney assert his Fifth Amendment right against self-incrimination to quash subpoenas issued by the State Bar that seek production of client accounting records and tax records.

NEVILLE, JR. VS. DIST. CT. (TERRIBLE HERBST, INC.)

  • Does NRS Chapter 608 provide a private right of action for unpaid wages.

ABID VS. ABID (CHILD CUSTODY)

  • Is illegally obtained evidence admissible in a child custody proceeding.

DOE VS. STATE, LEGISLATURE OF THE 77TH SESSION

  • Does Nevada’s medical marijuana registry violate the Due Process, Equal Protection, or Self-Incrimination Clauses of the United States or Nevada Constitutions.

Visit the Nevada Appellate Report for more legal news.

Does the alter ego doctrine apply to limited liability companies (LLC)?

Posted on by Jeff Jaeger

Does the alter ego doctrine apply to limited liability companies (LLC)?

Gardner vs. Dist. Ct. (Henderson Water Park, LLC) (Nev. Supreme Ct. – Nov. 22, 2017)

In this proceeding, the Supreme Court of Nevada considered whether seven managers of a limited liability company (LLC) were subject to suit for personal negligence as individual tortfeasors or under an alter ego theory of liability.

The Gardners, on behalf of their child L.G. (the Gardners), filed suit after L.G. suffered injuries resulting from a near-drowning at Cowabunga Bay Water Park in Henderson. The Gardners brought suit for negligence 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). In turn, Orluff Opheikens, Slade Opheikens, Chet Opheikens, Shane Huish, Scott Huish, Craig Huish, and Tom Welch (the Managers) have an ownership interest in, or manage, the member-LLCs, and they also served on a management committee governing the Water Park.

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