Do the Nevada Rules of Appellate Procedure allow for the imposition of attorney fees on a party who seeks to voluntarily dismiss a nonfrivolous writ petition after an answer has been filed?

Posted on by Jeff Jaeger

Breeden v. Eighth Jud. Dist. Ct. (Nev. Supreme Ct. – Mar. 5, 2015)

Attorney Breeden filed a petition in the Nevada Supreme Court for extraordinary writ relief, challenging a district court order adjudicating attorney liens and distributing settlement funds in a personal injury action. The real party in interest, Gonzalez, was Breeden’s former client. As ordered, Gonzalez filed an answer to Breeden’s writ petition. Breeden also had a separate contract action underway against Gonzalez and others, seeking to enforce an alleged fee-sharing agreement.

After receiving Gonzalez’s answer, Breeden decided it was more prudent to pursue the contract action than writ relief and moved to dismiss the writ petition under NRAP 42(b). Gonzalez opposed the motion. She asked that the Court resolve the petition on the merits but, if the Court does not, that it require Breeden to pay her costs and attorney fees.

The Court noted that a lawyer seeking to recover fees may proceed by separate contract action or by lien proceeding, depending on circumstances. For this reason, the Court declined to perpetuate the undecided writ proceeding if Breeden wished to abandon it in favor of his currently stayed contract action. The Court went on to decide whether it may condition the dismissal on Breeden repaying Gonzalez for the costs and attorney fees she incurred defending this now-abandoned writ petition.

Comparing NRAP 38 with Rule 38 of the Federal Rules of Appellate Procedure, which authorizes fee-shifting but limits the authorization to frivolous filings, the Court reasoned that it does not make sense to penalize a party who voluntarily dismisses a nonfrivolous appeal when, under Rule 38, the same party with the same nonfrivolous appeal would not have to pay the other side’s fees if he or she stayed with the appeal to the bitter end. Thus, the Court held that NRAP 42(b) does not provide authority for routine awards of attorney fees as a condition of voluntary dismissal, but that attorney fees may be awarded under NRAP 38 if an appeal or writ proceeding is frivolous.

Is a new notice of sale required if the time or place of a trustee’s sale changes after a third oral postponement?

Posted on by Jeff Jaeger

JED Prop. v. Coastline RE Holdings NV Corp. (Nev. Supreme Ct. – Mar. 5, 2015)

To foreclose on real property in Las Vegas that was used to secure a debt by JED Property, LLC, Coastline RE Holdings recorded a notice of a trustee’s sale. The trustee’s sale was orally postponed three times before the property was sold, with the sale occurring on the date and at the place set by the third oral postponement.

Coastline initiated a civil action against JED. JED filed a counterclaim against Coastline asserting wrongful foreclosure because Coastline violated NRS 107.082(2) when it orally postponed the sale three times without effectuating a written notice of the sale’s time and place. Coastline then filed a motion for summary judgment, arguing that JED premised its counterclaims on an erroneous interpretation of NRS 107.082(2). The district court granted summary judgment in favor of Coastline upon concluding that the three oral postponements did not trigger NRS 107.082(2)’s notice requirement because the sale occurred on the date set by the third oral postponement. JED appealed.

On appeal, JED argued that the district court’s reading of NRS 107.082(2) deviated from the statute’s plain meaning, which JED reads as requiring a written notice of new sale information upon the third oral postponement of the sale. Coastline contended that NRS 107.082(2) unambiguously permits three oral postponements of a sale and requires the notice of any new sale information only for postponements that follow the third oral postponement.

Citing NRS 107.082(2), the Nevada Supreme Court held that as long as the information regarding the sale’s date, time, and place remains the same after the third oral postponement, there is no new sale information to provide that would require a new notice. However, if the sale’s date, time, or location changes after the third oral postponement, then there is new sale information. Thus, if the sale’s date, time, or location changes after the third oral postponement, NRS 107.082(2) requires that this new sale information be noticed as provided in NRS 107.080(4).

The Court affirmed the district court’s granting of summary judgment in favor of Coastline noting that JED failed to submit any evidence that the day, time, or place of the trustee’s sale in this case changed after the third postponement.

Are inmate telephone call logs public records?

Posted on by Jeff Jaeger

LVMPD v. Blackjack Bonding (Nev. Supreme Ct. – Mar. 5, 2015)

In 2012, Blackjack Bail Bonds made a public records request to the Las Vegas Metropolitan Police Department (LVMPD), requesting inmate call logs from the Clark County Detention Center (CCDC).

Blackjack’s specifically requested, “a call log that details the description of the phone used. . . , the call start time, dialed number, complete code, call type, talk seconds, billed time, cost, inmate id, and last name.” Additionally, Blackjack asked for “a list of all phones used by inmates and the phone description, including whether the phone is used to place . . . free calls, collect calls, or both.”  Blackjack subsequently narrowed the scope of the requested information to calls to “all telephone numbers listed on the various bail bond agent jail lists posted in CCDC in 2011 and 2012” and conveyed that it understood “that the inmate names and identification numbers may need to be redacted.”

LVMPD denied Blackjack’s request, claiming that it did not possess the records.  Blackjack then petitioned the district court for a writ of mandamus to compel LVMPD to provide the requested records. The district court granted in part Blackjack’s request for mandamus relief, stating that (1) the requested records were public records that LVMPD had a duty to produce, (2) the inmates’ names and identification numbers must be redacted before production, and (3) Blackjack would pay the costs associated with the production.

On appeal, LVMPD argued that the requested records are not public records subject to disclosure because they (1) do not concern an issue of public interest, (2) involve communications between private entities, and (3) are not in LVMPD’s legal custody or control.  LVMPD also argued that it need not produce the requested records because Public Employees’ Retirement System v. Reno Newspapers, Inc. (PERS), 129 Nev. , 313 P.3d 221 (2013), prevents it from having to create a new document to satisfy a public records request.  Alternatively, LVMPD argued that if the requested records are public records, then a balancing-of- competing-interests test weighs in favor of nondisclosure because of the inmates’ privacy interests and the burdens associated with production.

The Nevada Supreme Court held that the information that Blackjack requested is a public record because it relates to the provision of a public service.  The Court also found that substantial evidence indicated that LVMPD has legal control over the requested information.

Further, the Court indicated that the requested public records are readily accessible and PERS does not prevent their disclosure. The Court noted that LVMPD failed to demonstrate that the requested disclosure was financially burdensome. Therefore, the balancing-of-competing-interests test does not preclude its duty to produce the requested information.

Can a bank recover a deficiency from a court appointed receiver’s sale of real property securing a $20.15 million loan?

Posted on by Jeff Jaeger

U.S. Bank Nat’l Ass’n v. Palmilla Dev. Co. (Nev. Supreme Ct. – Mar. 5, 2015)

“Palmilla Development Co., took out a loan for $20.15 million from the predecessor-in-interest of appellant U.S. Bank. The loan was secured by a deed of trust on a development of townhomes and personally guaranteed by respondent Hagai Rapaport, Palmilla’s president. U S Bank became the legal holder of the loan note and all beneficial interest under thefl deed of trust, following which Palmilla defaulted and Rapaport failed to fulfill his guarantor obligations. U.S. Bank then instituted an action seeking to appoint a receiver in order to collect rents from, to market, and to sell the secured property.”

Following the district court’s approval of U S Bank’s request, the receiver, through a real estate marketing company, listed the subject property and, over the course of several months, obtained 31 offers to purchase the property. From these offers, the receiver identified what it believed to be the best offer and entered into a purchase and sale agreement with that third-party purchaser for $9.5 million on February 5, 2010. U.S. Bank filed a motion to approve the sale, which the district court granted on March 26, 2010. Escrow closed on June 7, 2010, when the purchaser paid the agreed upon price and obtained the deed to the property.

The bank filed an amended complaint seeking the recover the deficiency from the proceeds of the receiver’s sale. Palmilla filed a motion for summary judgment arguing that that the relief sought in the amended complaint was, in essence, an application for a deficiency judgment under NRS 40.455(1), which U.S. Bank was precluded from seeking because (1) the receiver sale was not a “foreclosure sale or trustee’s sale held pursuant to NRS 107.080,” and absent either of those two types of sales, NRS 40.455(1) does not permit a deficiency judgment; and (2) even if NRS 40.455(1) could be used to seek a deficiency judgment following a receiver sale of real property securing a loan, U.S. Bank failed to comply with the section’s time frame for so seeking.

The district court granted Palmilla’s motion, holding that, although U.S. Bank could utilize NRS 40.455(1) to seek a deficiency judgment following a receiver sale of real property securing a loan, U.S. Bank had to abide by NRS 40.455(1)’s six-month time frame in so doing, and that more than six months had passed between the date U.S. Bank filed its amended complaint and the date the district court approved the purchase and sales agreement.

On appeal, the Nevada Supreme Court held that a receiver sale of real property securing a loan is a “foreclosure sale” within the meaning that NRS 40.455(1) and that NRS 40.455(1) governs actions for deficiency judgments following a receiver sale of real property securing a loan. The court further held that in the context of receiver sales of real property securing loans, it is not until the actual exchange of money, the close of escrow, that NRS 40.455(1)’s six-month time limit begins.

The Court reversed and remanded the matter noting that less than six months had elapsed between the payment of funds on June 7, 2010, and U.S. Bank’s application for a deficiency judgment on November 24, 2010, U.S. Bank complied with NRS 40.455(1)’s requisite time frame.

In a probate proceeding, who can challenge the parentage of a potential heir?

Posted on by Jeff Jaeger

In re Estate of Murray (Nev. Supreme Ct. – Mar. 5, 2015)

The Nevada Supreme Court recently reviewed whether in a probate proceeding, the parentage of an heir can be contested under Nevada’s probate statutes or the Nevada Parentage Act.

The Court noted that Under Nevada’s Parentage Act (UPA) of NRS Chapter 126, a ‘”[p]arent and child relationship means the legal relationship existing between a child and his or her natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties and obligations. It includes the mother and child relationship and the father and child relationship.” The Court also acknowledged that under the parentage statutes, “a determination of parentage rests upon a wide array of considerations rather than genetics alone.”

The Court believed that the Legislature, by adopting the UPA and failing to provide any independent means of determining parentage for inheritance purposes, intended for Nevada’s parentage statutes to apply in probate proceedings. The Court further noted that deferring to the parentage act will equitably resolve paternity disputes when conflicts arise between presumptive and biological paternity in probate proceedings.  Thus, the Court concluded that the Nevada Parentage Act applies to parentage challenges in Nevada probate proceedings.

Does a casino’s knowledge of insufficient funds negate the intent to defraud element under NRS 205.130?

Posted on by Jeff Jaeger

Zahavi v. State (Nev. Supreme Ct. – Feb. 26, 2015)

Beginning in the late 1990’s, Zahavi began gambling, obtaining lines of credit, and executing markers at various Las Vegas casinos. In 2008, Zahavi failed to pay $384,000 in markers he took from the Hard Rock Hotel, Caesars Palace, Venetian, and Palazzo. The State filed a four count indictment against Zahavi for writing checks with insufficient bank funds with intent to defraud. A jury found Zahavi guilty on all four counts.

On appeal, Zahavi contended that the casinos had knowledge of his insufficient funds and inability to pay back the 14 gaming markers he obtained. The Nevada Supreme Court analyzed whether the district court should have instructed the jury that a casino’s knowledge of insufficient funds in a casino patron’s bank accounts at the time of the issuance of a marker negates the intent-to-defraud element of NRS 205.130(1)(e).

The Court held that the “intent to defraud” element may be negated by a disclosure of insufficient funds to the payee and that Zahavi was entitled to have the jury so instructed if there was proof in the record supporting the instruction. The Court concluded that because Zahavi failed to make an affirmative disclosure to the casinos and the casinos had no present knowledge of his insufficiency of funds at the time the markers were executed, there was no evidence to negate the intent-to defraud element, and therefore the district court did not abuse its discretion by refusing the instruction.

Zahavi also challenged the constitutionality of NRS 205.130, arguing that it violates the provision in the Nevada Constitution that prohibits imprisonment for failing to pay a debt, except in cases of fraud. Based on prior decisions, and persuasive authority from other jurisdictions with similar constitutional prohibitions, the Court concluded that NRS 205.130 does not violate article 1,section 14 of the Nevada Constitution because Zahavi’s conviction is based on committing a fraudulent act and not on incurring a debt.

What happens when an attorney fails to object to a constitutional error at trial?

Posted on by Jeff Jaeger

Martinorellan v. State (Nev. Supreme Ct. – Feb. 26, 2015)

In this case, the Nevada Supreme Court considered the district court’s failure to instruct a jury to restart deliberations as is required by NRS 175.061(4) after an alternate juror replaced a regular juror.

“Martinorellan entered a smoke shop and stabbed the store’s owner while attempting to commit a robbery. At trial, the jury deliberated for approximately 1 hour and 15 minutes before the district court convened a hearing, dismissed a juror who stated that he knew the victim, and replaced that juror with an alternate juror. The district court did not recall the jury to the courtroom or instruct it to restart deliberations. Martinorellan did not object to the district court’s decision not to recall the jury and instruct it to restart deliberations. The reconstituted jury deliberated for nearly 4 hours and 30 minutes over two days and viewed a playback of testimony before convicting Martinorellan of burglary while in possession of a deadly weapon, attempted robbery with the use of a deadly weapon, and battery with the use of a deadly weapon.”

On appeal, Martinorellan argued that the failure to instruct the jury to restart deliberations after an alternate juror replaced an original juror was an error of constitutional dimension because it interfered with his constitutional right to a trial by a fair and impartial jury. The State argued that this error was not of constitutional dimension because the district court did not prevent the jury from restarting deliberations after the alternate juror was seated.

The Nevada Supreme Court reasoned that the failure to instruct a jury to restart deliberations after an alternate juror replaces an original juror during deliberations can create the risk of the original jurors exerting undue influence on the alternate juror. Since this infringes on a defendant’s right to a trial by an impartial jury, the Court held that the district court’s failure to instruct the jury to restart deliberations was an error of constitutional dimension.

What standard of review for unpreserved constitutional errors?

At trial, Martinorellan did not object to the district court’s decision not to recall the jury.  However, he argued that the standard of review for an unpreserved constitutional error should be the same as that for a preserved constitutional error. Citing Johnson v. United States, 520 U.S. 461, 465-66 (1997), the Court held that all unpreserved errors are to be reviewed for plain error without regard as to whether they are of constitutional dimension.

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Nevada Supreme Court conducts a minimum contacts test

Posted on by Jeff Jaeger

Fulbright & Jaworski v. Eighth Jud. Dist. Ct. (Nev. Supreme Ct. – Feb. 5, 2015)

This case should be of special interest to those of us who did not get enough civ pro in law school.

The issue is whether a Texas-based law firm’s representation of a Nevada client in a Texas matter, by itself, provides a basis for specific personal jurisdiction in Nevada.

After extensive analysis, the Court concluded that an out-of-state law firm that is solicited by a Nevada client to represent the client on an out-of-state matter does not subject itself to personal jurisdiction in Nevada simply by virtue of agreeing to represent the client.

 

Doctor claims venue not appropriate for subpoena contempt petition issued by the Nevada State Board of Medical Examiners

Posted on by Jeff Jaeger

Jones v. State, Bd. of Med. Exam’rs (Nev. Supreme Ct. – Feb. 5, 2015)

On appeal, a doctor argues that the district court failed to consider NRS Chapter 13, including the doctrine of forum non conveniens, in denying her motion to change venue of a subpoena contempt petition arising from her failure to comply with an administrative subpoena issued by the Nevada State Board of Medical Examiners.

“After a preliminary investigation, respondent Nevada State Board of Medical Examiners filed an administrative complaint against appellant Carmen Jones, M.D., alleging among other things that Dr. Jones aided a third party in the unauthorized practice of medicine. In furtherance of the Board’s investigation, it issued a subpoena to Dr. Jones to obtain patient records in accordance with NRS 630.140(1)(b), which authorizes the Board to issue administrative subpoenas to compel the production of documents. When Dr. Jones failed to comply with the subpoena, the Board petitioned the Second Judicial District Court, located in Washoe County, for an order compelling compliance with its administrative subpoena under NRS 630.140 and NRS 630.355.”

Dr. Jones filed a motion to change the venue of the subpoena contempt petition to the Eighth Judicial District Court, which is located in Clark County, arguing that the petition to enforce the subpoena should have been brought in Clark County where she resides and practices medicine.

The district court denied Dr. Jones’s motion for a change of venue finding that under NRS 630.355(1), venue in the Second Judicial District Court was proper.

The Nevada Supreme Court affirmed the district court’s order holding that NRS 630.355(1) means that venue for a contempt proceeding brought by the Board under that statute is proper in the county where the administrative work of the Board is taking place.

In this case, the Board’s administrative work, including its filing of a formal complaint and its previous issuance of an order of summary suspension of Dr. Jones’s license, took place in the Board’s Washoe County office.

Northern Nevada Correctional Center inmate removed from position as law clerk for passing contraband

Posted on by Jeff Jaeger

Abarra v. State of Nevada (Nev. Supreme Ct. – Feb. 5, 2015)

“In February 2011, a correctional officer at Northern Nevada Correctional Center (NNCC) found appellant David Abarra, an NNCC inmate, carrying 21 pills, a contraband pornographic magazine that included a note stating that an unspecified item or service would be “the usual price,” and another inmate’s completed W-2 form. NNCC charged Abarra with, among other things, unauthorized trading or bartering and providing legal services for a fee. Abarra pleaded guilty to bartering but pleaded not guilty to providing legal services for a fee (an “MJ29″ violation).”

“At a disciplinary hearing, Abarra stated that although he was guilty of passing contraband, the “usual price” note was in reference to the magazine itself and that he was returning the W-2 to another prisoner as part of his work as a prison law clerk. The NNCC convicted Abarra of the MJ29 violation and, as punishment, removed him from his position as a law clerk.”

Abarra challenged the MJ29 discipline through an informal grievance, followed by a first-level formal grievance.  Abarra filed a complaint in district court asserting five claims.  The district court dismissed his claims asserting that Abarra failed to exhaust his administrative remedies.  The Nevada Supreme Court reversed in part and affirmed in part.