Nevada Appellate Courts Advance Opinions for May 17, 2018

Posted on by Jeff Jaeger

Nevada Appellate Courts Advance Opinions for May 17, 2018

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.

SATICOY BAY LLC SER. 9641 CHRISTINE VIEW VS. FED. NATIONAL MORTG. ASS’N.

  • Does a regulated entity like Fannie Mae have standing to assert the Federal Foreclosure Bar in a quiet title action.
  • Does the Federal Foreclosure Bar preempt NRS 116.3116, which allows a homeowners’ association foreclosure on a superpriority lien to extinguish a first deed of trust.

66652 – MOORE (RANDOLPH) VS. STATE (DEATH PENALTY-PC)

  • Did the State’s withholding of impeachment evidence violate Brady v. Maryland.

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Is it permissible to strike a prospective juror based on sexual orientation?

Posted on by Jeff Jaeger

Picture of two hands removing jurors from a jury box

Morgan (John) vs. State (Nev. Supreme Ct. – May 3, 2018)

The State used a peremptory challenge to strike a prospective juror, an identifiably gay member. The defendant made a Batson challenge against the State’s strike based on sexual orientation.

On October 30, 2014, Maria was working as a manager at an AM/PM convenience store when she saw a man grab a package of mixed nuts and put them into his pocket. Maria approached the man while he was at the checkout counter trying to pay for another item and asked him if he could please take out what he had placed into his pocket. The man told Maria to “get the f_ _ _ out of [his] face,” and as she backed up in response, he approached and hit her in the chest. Maria fell to the ground, got up, and hit the man’s backpack with a stick as he left the store. The man’s backpack ripped and containers of soup fell out. Maria called the police and indicated where the man departed. Police detained the man and identified him as Morgan. The State then charged Morgan by way of criminal complaint and information with one count of robbery and one count of battery with intent to commit a crime.

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Nevada Appellate Courts Advance Opinions for May 3, 2018

Posted on by Jeff Jaeger

Nevada Appellate Courts Advance Opinions for May 3, 2018

DOLORES VS. STATE, DEP’T OF EMPLOYMENT SEC. DIV.

  • Is submitting a resignation when faced with a resign-or-be-fired option a voluntary resignation under NRS 612.380, thereby disqualifying an individual from unemployment benefits.

LAS VEGAS DEV. GRP., LLC VS. BLAHA

  • Do the time limitations in NRS 107.080(5)-(6) (2010) bar an action challenging an NRS Chapter 107 nonjudicial foreclosure where it is alleged that the deed of trust had been extinguished before the sale.

COTTER, JR. VS. DIST. CT. (COTTER)

  • Do documents disclosed to third parties constitute waiver of the work-product privilege.

MEI-GSR HOLDINGS, LLC VS. PEPPERMILL CASINOS, INC.

  • Does NRS 600A.030, Nevada’s Uniform Trade Secrets Act (NTSA), preclude a defendant from demonstrating that certain information is readily ascertainable and not a trade secret even though the defendant acquired the information through improper means.

FITZGERALD VS. MOBILE BILLBOARDS, LLC

  • Were allegedly defamatory statements made by an employer regarding an employee’s alleged abuse of the workers’ compensation program to obtain prescription pain medication, a violation of NRS 616D.300, absolutely privileged.

IN RE: MATTER OF E.R. C/W 73198

  • Does a familial placement preference survive the termination of parental rights.

COLEMAN (SOLOMON) VS. STATE

  • Does NRS 200.604 prohibit a person from copying, without permission, a consensually recorded video depicting sexual acts.

MORGAN (JOHN) VS. STATE

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Does one party’s breach of a contract release the non-breaching party’s obligation to a third-party beneficiary?

Posted on by Jeff Jaeger

Picture of a woman tearing a contract

Cain vs. Price (Nev. Supreme Ct. – Apr. 12, 2018)

The promisor in this case failed to fulfill its contractual obligations under a settlement agreement. The third-party beneficiaries claimed they were entitled to the contract’s release provision when the non-breaching party elected to seek damages for the promisor’s breach of the contract.

The Cains, as owners of Heli Ops International, entered into a joint venture agreement (JVA) with C4 Worldwide, Inc. The JVA provided that Heli Ops would loan $1,000,000 to C4 for the purpose of acquiring and then leveraging Collateralized Mortgage Obligations (CMOs). In return, Heli Ops would receive the first $20,000,000 in profits from C4’s leveraging of the assets, while retaining a 49 percent security interest in the CMOs until C4 had paid out that amount. The Cains transferred $1,000,000 to C4, but C4 did not distribute any profits to the Cains.

The Cains subsequently entered into a Settlement Agreement and Release of All Claims with C4 and its CEO. In the Settlement Agreement, C4 agreed to pay the Cains $20,000,000 no later than 90 days from February 25, 2010. In return, the Cains agreed to release C4 and its officers from any liability for C4’s financial misfortunes and resultant inability to timely pay. The Agreement further provided that California law governed its construction and interpretation and that the prevailing party in any action arising under the Settlement Agreement would be entitled to fees and costs.

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Nevada Appellate Courts Advance Opinions for April 12, 2018

Posted on by Jeff Jaeger

Nevada Appellate Courts Advance Opinions for April 12, 2018

CAIN VS. PRICE C/W 69889/70864

  • Does one party’s material breach of a contract release the non-breaching party’s contractual obligation to a third-party beneficiary.

U.S. HOME CORP. VS. THE MICHAEL BALLESTEROS TRUST

  • Does the Federal Arbitration Act (FAA) govern the arbitration agreement contained in a common-interest community’s Covenants, Conditions, and Restrictions (CC&Rs).

CLARK CTY. OFFICE OF THE CORONER/MED. EXAM’R VS. LAS VEGAS REVIEW JOURNAL

  • Is a local government entity that moved for a stay under NRCP 62, entitled to a stay of a money judgment without bond or other security.

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Is a telephonic search warrant containing a false statement valid?

Posted on by Jeff Jaeger

Crime scene with detective on a ceellphone

State vs. Sample (Gregory) (Nev. Supreme Ct. – Apr. 5, 2018)

Sample was arrested for driving under the influence of alcohol after failing a preliminary breath test (PBT). The results of the PBT were subsequently used to obtain a search warrant for an evidentiary blood draw. The district court suppressed the PBT results, concluding that they were obtained in violation of Sample’s Fourth Amendment rights, and also suppressed the evidentiary blood draw as the fruit of an illegal search. The State argued on appeal that the district court erred because Sample was under arrest at the time the PBT was administered, the PBT was a legal search incident to the arrest, and the blood evidence was legally obtained pursuant to the search warrant.

While on patrol one night, Deputy Swanson noticed a northbound vehicle cross over fog lines and double yellow lines, accelerate rapidly, cross into a southbound turn lane, and veer back into the northbound travel lane. Deputy Swanson first activated his overhead lights, and then activated his siren in an attempt to initiate a traffic stop. The vehicle did not stop and continued driving to Sample’s residence where it pulled into the driveway.

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Nevada Appellate Courts Advance Opinions for April 5, 2018

Posted on by Jeff Jaeger

Nevada Appellate Courts Advance Opinions for April 5, 2018

STATE VS. SAMPLE (GREGORY)

  • Does a preliminary breath test that is not administered pursuant to a warrant or an exception to the warrant requirement, violate the Fourth Amendment.
  • Is a telephonic search warrant that contains a false statement valid.

KIRSCH VS. TRABER

  • What is the definition of a “final judgment.”

NANCE V. FERRARO

  • Is a district court barred from reviewing the facts and evidence underpinning its prior rulings or custody determinations in deciding whether the modification of a prior custody order is in the child’s best interest.
  • Are parties prohibited from presenting previously known domestic violence evidence defensively to show modification to a custody determination is not in the child’s best interest.

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When are government employees’ private cellphone and email records public record?

Posted on by Jeff Jaeger

Person holding a cellphone

Comstock Resident’s Ass’n vs. Lyon Cty. Bd. of Comm’rs (Nev. Supreme Ct. – Mar. 29, 2018)

In this appeal, the Supreme Court of Nevada considered a district court’s denial of a petition for a writ of mandamus to compel disclosure of records where members of the Lyon County Board of Commissioners conducted county business on private cellphones and email accounts.

In 2013, the Lyon County Board of Commissioners received an application to alter the zoning within Lyon County to allow for industrial development. The Board received reports from the county’s planning staff and held public hearings, after which they voted to recommend denying the proposed zoning change. At a subsequent meeting of the county commissioners, the issue was reintroduced and the zoning change approved. The Comstock Residents Association (CRA), brought suit against the Board, challenging the approval of the zoning change.

As part of that suit, CRA made a public records request of Lyon County and its commissioners, seeking communications concerning the approval of the zoning change, regardless of whether they occurred on public or private devices. Lyon County provided phone records, emails, and other records that were created or maintained on county equipment and some public records created on private devices as well. However, Lyon County also notified CRA that it did not provide or pay for phones or email accounts to any commissioners. The county’s website listed the commissioners’ personal phone numbers and email addresses as their contact information. The county conceded that these private telephones and email addresses were used to conduct county business.

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Nevada Appellate Courts Advance Opinions for March 29, 2018

Posted on by Jeff Jaeger

Nevada Appellate Courts Advance Opinions for March 29, 2018

SOUTHWORTH VS. DIST. CT. (LAS VEGAS PAVING CORP.)

  • Is the time to appeal outlined in the Justice Court Rules of Civil Procedure (JCRCP), specifically the time set forth in JCRCP 98, jurisdictional and mandatory, therefore removing from the district court’s jurisdiction an untimely appeal from justice court.

COMSTOCK RESIDENTS ASS’N VS. LYON CTY. BD. OF COMM’RS

  • Does the Nevada Public Records Act (NPRA) exempt public records maintained on private devices or servers from disclosure.

KING, P.E. VS. ST. CLAIR

  • What constitutes sufficient evidence of a prior owner’s intent to abandon a water right.

NULEAF CLV DISPENSARY, LLC VS. STATE, DEP’T. OF HEALTH AND HUMAN SERV.’S

  • Must NRS 453A.322(3)(a)(5)’s requirement that an applicant seeking to obtain a medical marijuana establishment registration certificate obtain approval from the local government where the establishment is to be located certifying that the applicant is in compliance with applicable zoning restrictions and building requirements, be satisfied before an applicant can receive a registration certificate.

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Nevada Appellate Courts Advance Opinions for March 15, 2018

Posted on by Jeff Jaeger

Nevada Appellate Courts Advance Opinions for March 15, 2018

MILLER VS. MILLER

  • What is the appropriate application and interpretation of Nevada’s child support statutes where both parents share joint physical custody of one child, but one parent has primary physical custody of the other child.

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