Year: 2018

Nevada Appellate Courts Advance Opinions for October 4, 2018

Posted on by Jeff Jaeger

Nevada Appellate Courts Advance Opinions for October 4, 2018

HOWARD VS. HUGHES

  • Must the initial presumption that cotenants share equally be successfully rebutted through evidence of lack of relatedness or donative intent prior to the court dividing the property or proceeds.

DOLORFINO VS. UNIV. MED. CTR. OF S. NEVADA

  • When is a plaintiff required to attach a supporting affidavit from a medical expert to a complaint for the purposes of NRS 41A.100(1)(d).

RODRIGUEZ VS. FIESTA PALMS, LLC

  • Did the district court abuse its discretion when it denied a 60(b)(1) motion for relief to an unrepresented litigant who knowingly neglected procedural requirements and then failed to promptly move for relief.

Visit the Nevada Appellate Report for more legal news.

Nevada Appellate Courts Advance Opinions for September 27, 2018

Posted on by Jeff Jaeger

Nevada Appellate Courts Advance Opinions for September 27, 2018

WARREN, JR. (JOSEPH) VS. DIST. CT. (STATE)

  • Does NRS 178.562(2) limit the State’s options after the justice court dismisses a criminal complaint that charges felony and/or gross misdemeanor offenses such that the State can only file a motion for leave to file an information by affidavit or obtain a grand jury indictment and cannot appeal the justice court’s decision to the district court.

HALL PRANGLE & SCHOONVELD, LLC VS. DIST. CT. (PETERSON) C/W 70083

  • Can a court use the collective knowledge doctrine to aggregate employees’ knowledge to impose discovery sanction orders.
  • Does a district court’s citation to the Rules of Professional Conduct in support of a determination of attorney misconduct cause reputational harm that amounts to a sanction.

DECHAMBEAU V. BALKENBUSH

  • What controls the duration and scope of a stipulation.

Visit the Nevada Appellate Report for more legal news.

Nevada Appellate Courts Advance Opinions for September 13, 2018

Posted on by Jeff Jaeger

Nevada Appellate Courts Advance Opinions for September 13, 2018

WELLS FARGO BANK, N.A. VS. RADECKI

  • Is a regularly conducted, non-collusive NRS Chapter 116 foreclosure sale exempt from the Uniform Fraudulent Transfer Act (UFTA) pursuant to NRS 112.170(2).
  • Does an alleged inaccuracy in a foreclosure deed invalidate an otherwise valid foreclosure sale.

IN RE: CONNELL LIVING TRUST

  • Does a trust beneficiary forfeit interest in the trust’s assets pursuant to a no-contest clause penalty by breaching her fiduciary duties while acting in her dual capacity as trustee.

BANK OF AMERICA, N.A. VS. SFR INV.’S POOL 1, LLC

  • Does a first deed of trust holder’s unconditional tender of a superpriority amount due result in the buyer at foreclosure taking the property subject to the deed of trust.

BAIGUEN VS. HARRAH’S LAS VEGAS, LLC

  • When does an injury arising from an employer’s failure to provide medical assistance to an employee arise out of and in the course of the employment.

IBARRA (GABRIEL) VS. STATE

  • Does a person who asks to borrow another person’s property temporarily while intending to steal it permanently, take the property without the other person’s consent for purposes of NRS 205.270(1) (larceny from a person).

ROSENBERG LIVING TRUST VS. MACDONALD HIGHLANDS REALTY, LLC C/W 70478

  • Does Nevada recognize implied restrictive covenants based on a common development scheme.

Visit the Nevada Appellate Report for more legal news.

When does a person reside in a dwelling for the purpose of Nevada’s home invasion statute?

Posted on by Jeff Jaeger

Picture of a person kicking-in the front door of a home

Dunham (John) vs. State (Nev. Supreme Ct. – Sep. 26, 2018)

A defendant was convicted of home invasion under NRS 205.067 when he entered his wife’s second home. The issue is whether the word “resides” as used in the definition of “inhabited dwelling” in Nevada’s home invasion statute, NRS 205.067(5)(b), requires the “owner or other lawful occupant” to dwell permanently or continuously.

Dunham and his wife Patricia Scripko lived in a rented home in Monterey, California. In October 2015, Scripko purchased in her name only a condominium in Stateline, Nevada. Scripko testified that she originally planned to move to Stateline, but after the purchase, she lived in both the condominium and the Monterey home. Specifically, Scripko explained that she lived and worked in Monterey but spent occasional weekends at the condominium and, at one point, spent half her time in Monterey and half her time at the condominium. Dunham and Scripko began living separately in June 2016, and Dunham moved into the condominium while Scripko remained in Monterey.

Continue reading “When does a person reside in a dwelling for the purpose of Nevada’s home invasion statute?” →

Nevada Appellate Courts Advance Opinions for September 6, 2018

Posted on by Jeff Jaeger

Nevada Appellate Courts Advance Opinions for September 6, 2018

DUNHAM (JOHN) VS. STATE

Visit the Nevada Appellate Report for more legal news.

When can one person consent to the search of another person’s living space?

Posted on by Jeff Jaeger

Picture of police officer speaking to two children inside a home

Lastine v. State (Nev. Ct. App. – Aug. 30, 2018)

The Fourth Amendment to the United States Constitution and Article 1, Section 18 of the Nevada Constitution provide that the people possess an inviolable right against unreasonable searches and seizures. Under both provisions, warrantless searches are per se unreasonable subject to a few specific exceptions. One such exception is the consent of a third party who has authority over the premises or effects to be searched. The issues are 1) how does a person’s living arrangement within a third party’s residence affect that third party’s legal authority to consent to a search of the other person’s living space, and 2) can law enforcement officers rely upon the consent of a third party to search a room within a residence without asking about the living arrangements within that residence.

On Wednesday, January 7, 2016, Green’s vehicle was rear-ended by a truck while waiting at a traffic light on her drive home from work, and she suffered a whiplash injury. The driver of the truck drove away after striking Green’s car. Green and one witness told first responders they believed the driver was a man.

In the debris field on the road, a Nevada Highway Patrol trooper found a license plate that did not belong to Green’s car. The trooper ran the plate through dispatch and discovered the plate belonged to a truck registered to Andrew Lastine. Due to concurrent jurisdiction in the area, Washoe County Sheriffs Deputy Gamboa headed to the address listed on the truck’s registration.

Continue reading “When can one person consent to the search of another person’s living space?” →

Nevada Appellate Courts Advance Opinions for August 30, 2018

Posted on by Jeff Jaeger

Nevada Appellate Courts Advance Opinions for August 30, 2018

O’CONNELL V. WYNN LAS VEGAS, LLC

  • Must a lawyer, who represents a client on a contingency fee basis, provide proof of hourly billing records before he or she can be awarded attorney fees that are otherwise allowed by agreement, rule, or statute.

LASTINE V. STATE

MOONEY V. STATE

  • When does a private individual act as an agent or instrument for the government implicating the protections of the Fourth Amendment from an unreasonable search and seizure.

Visit the Nevada Appellate Report for more legal news.

When does expert witness testimony assist the trier of fact?

Posted on by Jeff Jaeger

expert witness

Mathews (Donovine) vs. State (Nev. Supreme Ct. – Aug. 23, 2018)

A defendant, Mathews’ conviction stems from an incident involving his girlfriend’s two-year-old son, who incurred burns on his hands while Mathews was babysitting him and his sibling. Mathews maintained that the burns happened accidentally, while the State argued that Mathews intentionally burned the child. The Supreme Court of Nevada determined whether the trial court abused its discretion in excluding Mathews’ expert witness.

On the morning of January 5, 2016, Mathews babysat his girlfriend Jasmin’s two children, C.J. and J.J., at Jasmin’s apartment while she went to a meeting at her apartment complex. Mathews’ account of the incident as told to detectives is that while he was babysitting, he boiled water on the stove and poured it into a mug to make instant coffee. After putting the water in the mug, he set it on the counter and went to change J.J.’s diaper. When he returned to the kitchen, C.J. was screaming, the backs of his hands were burned, and the mug was on the floor. Mathews maintains that C.J. accidentally spilled the water in the mug and burned himself, while the State contends that Mathews intentionally burned C.J.

Continue reading “When does expert witness testimony assist the trier of fact?” →

Nevada Appellate Courts Advance Opinions for August 23, 2018

Posted on by Jeff Jaeger

Nevada Appellate Courts Advance Opinions for August 23, 2018

RICHARD (DVONTAE) VS. STATE

  • When should an out-of-court statement be excluded from the definition of hearsay as a prior inconsistent statement or as a prior identification.

MATHEWS (DONOVINE) VS. STATE

Visit the Nevada Appellate Report for more legal news.

Nevada Appellate Courts Advance Opinions for August 2, 2018

Posted on by Jeff Jaeger

Nevada Appellate Courts Advance Opinions for August 2, 2018

COLES (BRENT) VS. BISBEE

  • Does the Parole Board’s use of the Static-99R recidivism risk assessment comply with the relevant statutory provisions governing parole review for prisoners convicted of sexual offenses.

SHORES VS. GLOBAL EXPERIENCE SPECIALISTS, INC.

  • Must a noncompete agreement that imposes a nationwide restriction be limited to the geographical areas in which an employer has particular business interests.

N. NEVADA HOMES, LLC VS. GL CONSTR., INC.

  • What is the proper method of determining the prevailing party when faced with both a settlement and a damages recovery.

IN RE: PARENTAL RIGHTS AS TO S.L., N.R.B., H.R.B., W.C.B. C/W 71889

  • Does the termination of parental rights bases on the parents’ refusal to admit to abuse violate their Fifth Amendment rights.

SFR INVESTMENTS POOL 1, LLC VS. BANK OF NEW YORK MELLON (NRAP 5)

  • Does NRS 116.31168(1)’s incorporation of NRS 107.090 require a homeowner’s association to provide notices of default and/or sale to persons or entities holding a subordinate interest even when such persons or entities did not request notice, prior to the amendment that took effect on October 1, 2015.

GRANADA-RUIZ (GAMBINO) VS. DIST. CT. (STATE)

  • When does double jeopardy prohibit a retrial.

CLARK CTY. VS. HQ METRO, LLC

  • Does an order for immediate occupancy permitting a party to occupy a permanent easement vest a right to compensation.

NEVADA RECYCLING AND SALVAGE, LTD VS. RENO DISPOSAL CO., INC.

  • Were the appellants injured in their business and therefore have standing to assert their claim under the Nevada Unfair Trade Practice Act (UTPA).

HUBBARD (CORY) VS. STATE

  • Must the defense place intent or absence of mistake at issue before the State can seek admission of prior act evidence.

RIPPO (MICHAEL) VS. STATE (DEATH PENALTY-PC)

Visit the Nevada Appellate Report for more legal news.