Author: Jeff Jaeger

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.

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Nevada Appellate Courts Advance Opinions for December 21, 2017

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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?

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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.

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

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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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Can a witness give an opinion about a defendant’s guilt?

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Can a witness offer an opinion as to a defendant’s guilt?

Collins (Lesean) vs. State (Nev. Supreme Ct. – Nov. 22, 2017)

A jury convicted Collins of robbery and first-degree murder, for which he was sentenced to life in prison without the possibility of parole. On appeal, Collins argued, among other issues, that the testimony of the lead investigator in the case violated the rule against a witness giving an opinion on a defendant’s guilt.

Four days after Payton went missing, two ATV riders discovered her decomposed body in a ravine. Drag marks led through the dirt and brush to the body. No purse, wallet, cell phone, or means of identification or transportation were found. Payton’s shirt was pulled up over her head, and she was shoeless. Three of her acrylic fingernails had broken off – two were found at the scene – and one of her pockets was inside out. Some nearby rocks had blood on them.

Payton’s sister identified her body. Although identifiable, the body had decomposed too much for the coroner to definitively state the cause of death. The autopsy established that before she died, Payton sustained three blows to her head from a rod-like instrument. While the blows did not fracture Payton’s skull, they were strong enough to render her unconscious. The coroner deemed Payton’s death consistent with asphyxiation or being locked in the trunk of a car in southern Nevada’s late summer heat.

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Nevada Appellate Courts Advance Opinions for November 22, 2017

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Nevada Appellate Courts Advance Opinions for November 22, 2017

BRADLEY VS. DIST. CT. (HUDSON)

  • Does NRS 49.209’s privilege between a psychologist and patient apply when a criminal defendant seeks records related to a patient who is court-ordered to partake in therapy.

NATIONSTAR MORTG., LLC VS. SATICOY BAY LLC SERIES 2227 SHADOW CANYON

  • Is commercial reasonableness a relevant inquiry in an HOA foreclosure sale of real property.

YU VS. YU

  • When can a post-judgment vexatious litigant determination be challenged on appeal.

GARDNER VS. DIST. CT. (HENDERSON WATER PARK, LLC)

  • Does the alter ego doctrine apply to limited liability companies.

COLLINS (LESEAN) VS. STATE

  • Were a defendant’s constitutional rights violated on the first day of trial when the district court barred him from the courtroom for disruptive conduct for a two-hour period, during which it excused individual jurors for hardship, statutory ineligibility, and language barrier reasons.
  • Can a witness offer an opinion as to a defendant’s guilt.
  • When is a defendant entitled to a jury instruction on a lesser-included offense of voluntary manslaughter.

Visit the Nevada Appellate Report for more legal news.

When must an employer train its employees on the use of protective equipment?

Posted on by Jeff Jaeger

When must an employer train its employees on the use of personal protective equipment (PPE)?

Sierra Pack’g v. Chief Ad. Off’r of NOSHA (Nev. Ct. App. – Nov. 16, 2017)

29 C.F.R. § 1910.132(f) requires employers to provide training regarding the use of personal protective equipment to employees exposed to hazards necessitating the use of such equipment. Sierra Packaging and Converting, LLC, argued the Nevada Occupational Safety and Health Administration improperly cited it for violating 29 C.F.R. § 1910.132(f), as no facts established that the subject employees were actually exposed to such a hazard in the course of their work or were required by that regulation to have fall protection training.

Nevada Occupational Safety and Health Administration (NOSHA) received an anonymous complaint alleging that Sierra Packaging and Converting, LLC (Sierra Packaging), violated NOSHA’s health and safety regulations by allowing employees to climb on warehouse racks without personal protection equipment (PPE). Pictures of three employees on the racking without PPE accompanied the complaint.

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