Category: Uncategorized

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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Nevada Appellate Courts Advance Opinions for November 22, 2017

Posted on by Jeff Jaeger

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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Nevada Appellate Courts Advance Opinions for November 16, 2017

Posted on by Jeff Jaeger

Nevada Appellate Courts Advance Opinions for November 16, 2017

IN RE: DISCIPLINE OF CHRISTOPHER READE

  • Does SCR 102 provide for the imposition of a fine when the State Bar Disciplinary Board recommends that an attorney be suspended or disbarred.

FARMER (STEVEN) VS. STATE

  • When can offenses be joined as being committed as parts of a common plan or scheme pursuant to NRS 173.115(2).

HARRIS V. STATE

  • Can counsel’s affirmative misrepresentation regarding filing a postconviction petition and subsequent abandonment of the petitioner be an impediment external to the defense to satisfy cause for the delay under NRS 34.726(1)(a) for filing an untimely petition.

KNICKMEYER V. STATE OF NEVADA

  • Do the provisions of NRS Chapter 289, which are intended to provide job-related protections to peace officers employed by law enforcement agencies, apply to bailiffs and marshals employed by the Eighth Judicial District Court.

SIERRA PACK’G V. CHIEF AD. OFF’R OF NOSHA

  • What standard must the Nevada Occupational Safety and Health Administration utilize to establish employee exposure to hazard.

CITY OF LAS VEGAS VS. DIST. CT. (KAMIDE (STEVEN))

  • Does NRS 50.155(1) impose a duty to limit out-of-court communications between witnesses about their testimony when the witness exclusion rule has been invoked.

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Nevada Appellate Courts Advance Opinions for November 9, 2017

Posted on by Jeff Jaeger

Nevada Appellate Courts Advance Opinions for November 9, 2017

 ALOTAIBI (MAZEN) VS. STATE.

  • Is a statutory element that serves only to determine the appropriate sentence for an offense, but has no bearing as to guilt for the offense, an element of the offense for purposes of the lesser-included-offense analysis.

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Nevada Appellate Courts Advance Opinions for October 26, 2017

Posted on by Jeff Jaeger

Nevada Appellate Courts Advance Opinions for October 26, 2017

SZYMBORSKI VS. SPRING MTN. TREATMENT CTR.

  • How should a court determine whether a claim is for medical malpractice or ordinary negligence when dismissing a claim for failing to attach a medical expert affidavit pursuant to NRS 41A.071.

CLARK CNTY. SCHOOL DIST. VS. PAYO

  • Does the implied assumption of risk doctrine bar a student’s negligence action arising from injuries the student sustained while participating in a required activity during a physical education class.
  • How does discretionary-function immunity apply to the Clark County School District’s decision to add a floor hockey unit to the P.E. curriculum.

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When is a hotel liable for the wrongful acts of a third party?

Posted on by Jeff Jaeger

Hotel innkeep liability

Humphries vs. New York-New York Hotel & Casino, LLC (Nev. Supreme Ct. – Oct. 5, 2017)

This case deals with a patron that seeks to hold a casino civilly liable for injuries they suffered during an altercation with another patron on the casino floor. NRS 651.015 precludes such liability unless the wrongful act that caused the injuries was foreseeable. The statute further provides that a wrongful act is not foreseeable unless the owner or innkeeper failed to exercise due care for the safety of the patron or other person on the premises or had notice or knowledge of prior incidents of similar wrongful acts on the premises. In this case, the district court granted summary judgment in favor of the casino, finding that the casino did not owe a duty to the patrons pursuant to NRS 651.015 because the casino had no “notice or knowledge” the other patron would assault the patrons.

Humphries and Rocha were walking through New York-New York Hotel & Casino’s (NYNY) casino floor at 3:50 a.m. Humphries exchanged pleasantries with a woman who was accompanying another casino patron, Ferrell. Ferrell began conversing with Humphries and allegedly made a vulgar comment to her. Humphries responded and made a spitting motion towards Ferrell and then turned to walk away. Ferrell attacked Humphries, hitting and kicking her multiple times, and allegedly throwing her into a slot machine. Rocha, who was playing a slot machine when the attack began, attempted to intervene and was also hit by Ferrell.

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Nevada Appellate Courts Advance Opinions for October 5, 2017

Posted on by Jeff Jaeger

Nevada Appellate Courts Advance Opinions for October 5, 2017

MENDENHALL VS. TASSINARI

  • Are claims that are brought by the offering party in a second action, and arise out of facts that were discovered after serving the NRCP 68 offer, barred by general principles of claim preclusion or by the very terms of the NRCP 68 offer.

HUMPHRIES VS. NEW YORK-NEW YORK HOTEL & CASINO, LLC

  • When does an innkeeper owe a duty of care for on premises injuries caused by third parties because the wrongful act of a third party was foreseeable.

SWEAT (LONNIE) VS. DIST. CT. (STATE)

  • Does a defendant who pleads guilty to a lesser charge pursuant to a plea agreement and fails to comply with the terms of that agreement, waive his or her right to be protected from prosecution on a greater charge.

WILLIAMS (JESSICA) VS. STATE, DEP’T OF CORR.

  • Do credits earned pursuant to NRS 209.4465 apply to eligibility for parole as provided in NRS 209.4465(7)(b) where the offender was sentenced pursuant to a statute that requires a minimum term of not less than a set number of years, but does not mention parole eligibility.

FREDIANELLI VS. MARTINEZ

  • Can an attorney actively enforce a retaining lien.
  • Is an affirmative recovery necessary in the retaining lien context.
  • Can a retaining lien be reduced to a monetary judgment.

JOHNSON (DONTE) VS. STATE (DEATH PENALTY-PC)

  • Must a defendant file a postconviction petition within one year after remittitur issued on direct appeal from his original judgment of conviction where the direct appeal resulted in reversal and remand for another penalty hearing such that his sentences were unsettled.

IN RE: PARENTAL RIGHTS AS TO A.D.L. AND C.L.B., JR.

  • Are a parent’s Fifth Amendment rights violated when he or she is required to admit to a criminal act in order to maintain his or her parental rights.

Visit the Nevada Appellate Report for more legal news.

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.

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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.