Appealing in Nevada

Parents cannot stipulate to nonmodification of child support

cowdent@gtlaw.com (Tami Cowden) — Thu, 04 Feb 2010 10:30:09 -0800

In Fernandez v. Fernandez, the Nevada Supreme Court held that a stipulation between the parties that a child support order will not be modified cannot supersede statutory provisions allowing modification, up or down, upon a material change in circumstances.

The Court stated “The formula and guideline statutes are not designed to produce the highest award possible but rather a child support order that is adequate to the child’s needs, fair to both parents, and set at levels that can be met without impoverishing the obligor parent or requiring that enforcement machinery be deployed.” Absent legislative approval of parents’ ability to waive the right to modify on the basis of changed circumstances, the parties cannot stipulate around those statutory provisions.

3-0 decision authored by Pickering, with Parraguirre and Douglas concurring.

Successive summary judgment motions OK in Nevada, too.

cowdent@gtlaw.com (Tami Cowden) — Thu, 04 Feb 2010 10:11:13 -0800

Successive dispositive motions weren’t exactly the issue in Dictor v. Creative Management Services, but the Court did cite the two week old 9^th Circuit decision in Hoffman v. Tonnemacher, [discussed here] with approval. Therefore, it looks like the Court will follow the federal court lead on this issue.

In Dictor, the Nevada Supreme Court clarified the law of the case doctrine and choice of law decisions.

In this case, involving an insurance subrogation claim, the Court had previously determined in an unpublished decision that because the neither the insured nor the claimant were Nevada residents, NRS 687A.095, which bars suit against an insured of an insolvent insurer, did not apply.

On remand, the District court determined that a similar Missouri statute barred the suit, and granted summary judgment again.

Dictor appealed again, claiming that the Missouri law should not have applied, because the Supreme Court had decided that statutory defenses did not apply. It seems an amicus brief filed days before the oral argument in the first appeal had raised the Missouri statute. However, the Court had not considered or ruled on the applicability of that statute.

The Court stated the rule of the case doctrine bars reconsideration only of issues actually decided by the appellate court, and does not apply if the issue presented in a subsequent appeal differ from those previously presented. Application of the Missouri statute had not been addressed in the previous appeal, and the Court’s remand order had not prevent consideration of other statutory defenses.

The Court also addressed choice of law considerations for subrogation, adopting the comment d to Restatement of Conflicts, § 145, which states “the local law of the state where the parties are domiciled, rather than the local law of the state of conduct and injury, may be applied to determine whether one party is immune from tort liability to the other.” This is consistent with the Court’s previous adoption of the Restatement analysis for choice of law decisions in General Motors Corp. v. District Court, 122 Nev. 466, 134 P.3d 111 (2006), and emphasizes that whichever Restatement section is most specific to the facts should apply.

3-0 decision authored by Hardesty, with Parraguirre and Pickering concurring.

7th Circuit holds federal jurisdiction continues even if class not certified

cowdent@gtlaw.com (Tami Cowden) — Fri, 29 Jan 2010 09:49:08 -0800

In Cunningham Charter Corp. v. Learjet, Inc., the 7th Circuit Court of Appeals joins the 11^th circuit in resolving a jurisdictional question posed by the Class Action Fairness Act of 2005, 28 U.S.C. §§ 1332(d), 1453, and 1711-1715. That Act creates federal diversity jurisdiction over certain class actions in which at least one member of the class is a citizen of a different state from any defendant (that is, in which diversity may not be complete).

The Court held that where a class action has been transferred to federal court under the Act, but class certification is denied, the federal court retains jurisdiction. While the Act applies “to any class action [within the Act’s scope] before or after the entry of a class certification order,” the use of the term “a class certification order” rather than “the class certification order ” indicates the provisions refers only to timing, and does not create a requirement that the class be certified to retain federal jurisdiction.

Authored by Judge Richard Posner, the opinion ends what he called the potential for "ping-pong" between the federal and state courts. The Court “vindicate[d] the general principle that jurisdiction once properly invoked is not lost by developments after a suit is filed, such as a change in

the state of which a party is a citizen that destroys diversity.”

The 9^th Circuit has not yet ruled on the issue. In unpublished decisions, the Southern and Central Districts of California have ruled that jurisdiction under CAFA never existed if class certification is denied.

Successive summary judgment motions permitted by 9th Circuit

cowdent@gtlaw.com (Tami Cowden) — Fri, 22 Jan 2010 10:04:06 -0800

Joining 5 other circuits, the Ninth Circuit ruled in Hoffman v. Tonnemacher that FRCP 56 gives the district court the discretion to consider successive motions for summary judgment.

Here, in a medical malpractice case, the district court had partially denied a pre-trial motion for summary judgment and denied a motion for judgment as a matter of law on the remaining issues following presentation of evidence at trial. The jury deadlocked. After receiving permission to designate a new expert witness, the defendant filed another motion for summary judgment, which the court granted. The plaintiff challenged both the ruling and the consideration of the motion. While the Court found consideration of the motion was not an abuse of discretion, the grant of summary judgment was reversed in a separate memorandum disposition.

While the ruling makes clear that consideration of successive summary judgment motions is within the district court’s discretion, the decision is not exactly ground breaking. The Court had previously ruled such motions were permissible on the issue of qualified immunity, and had previously noted that summary judgment decisions are subject to reconsideration at any time. The language of FRCP 56 itself expressly grants a court discretion to alter the default timing limits on summary judgment motions.

The Court did note that district courts “retain discretion to weed out frivolous or simply repetitive motions."

The Court joined the 2d, 5^th, 6^th, 7^th, and 8^th Circuits on this issue.

Opinion issued January 21, 2010, authored by Graber, joined by Tashima and Bybee.

Executive branch cannot limit jurisdiction of judiciary

cowdent@gtlaw.com (Tami Cowden) — Thu, 21 Jan 2010 11:36:36 -0800

In Kucana v. Holder , the U.S. Supreme Court held that federal appellate courts have the jurisdiction to review Justice Department and immigration court decisions not to reopen deportation proceedings. The 7^th Circuit had held that it lacked jurisdiction to review the administrative determination, holding that 8 U. S. C. §1252(a)(2)(B)(ii) bars judicial review not only of administrative decisions made discretionary by statute, but also of those made discretionary by regulation.

The Court cited "separation of power concerns" in determining that the executive branch does not have the power to limit the jurisdiction of the judiciary.

The opinion, issued January 20, 2009, was authored by Ginsburg with all but Alito joining. Alito concurred on narrower grounds.

U.S. Supreme Court strikes down limits on campaign spending

cowdent@gtlaw.com (Tami Cowden) — Thu, 21 Jan 2010 11:17:59 -0800

It is a new world for politics, with the 2010 campaign likely to see even more corporate money in play.

In Citizens United v. FEC, the U.S. Supreme Court struck down the requirement of the McCain Feingold campaign finance act that corporations channel their campaign spending into political action committees rather than directly funding "electrioneering communications." The ruling overturned two prior decisions by the Court, a 2003 decision upholding the same provision, and a 1990 decision upholding a state law with a similar restriction.

The McCain-Feingold provision requiring political messages to disclose their funder was upheld. The ruling also does not affect the longstanding federal law preventing corporations from directly donating to federal political candidates.

Kennedy authored the 5-4 decision issued January 21, 2009. Stevens authored the dissent, joined by Ginsberg, Breyer, and Sotomayor.

Sixth Amendment requires public access to trial during voir dire

cowdent@gtlaw.com (Tami Cowden) — Wed, 20 Jan 2010 14:23:40 -0800

In Presley v. Georgia, the U.S. Supreme Court underscored the importance of public access to criminal trials.

In Presley, over the defendant’s objection, the trial court had excluded a member of the public, who happened to be the defendant’s uncle, because the courtroom was too small to hold both the prospective jurors and the relative without both sitting in the same row. The trial court had been concerned that the jurors could be tainted by such proximity.

The Court ruled per curiam 7-2 that judges must consider alternatives to closing a courtroom during jury selection, even if no party makes any suggestions for how to otherwise address the issue prompting the judge to consider closing the court in the first place. The high court majority said the Georgia Supreme Court had disregarded the U.S. Supreme Court's explicit instructions on that point.

Thomas and Scalia dissented, objecting to the summary disposition of the case.

Beware of jurors bearing gifts

cowdent@gtlaw.com (Tami Cowden) — Wed, 20 Jan 2010 14:13:18 -0800

Obviously, in some trials, jurors can develop a real fondness for the judge and the bailiff. Or so one must assume from the gifts given by jurors in

In Wellons, the U.S. Supreme Court ruled without full briefing or argument, vacating the 11^th Circuit ruling that Wellons’s challenge to his conviction was procedurally barred due to an adverse ruling in his state court habeas proceedings. That ruling had come before last year’s Supreme Court Cone v. Bell decision, ruling that federal courts should not deny relief on such grounds.

In this case, there had been ex parte contact between the judge who sentenced the defendant to death and the jurors, including a reunion either during or immediately after the penalty phase where the jurors gave the judge and bailiff chocolate in risqué shapes. The judge did not report the contact, and the defendant learned of the matter only post sentencing. The matter was raised in both the direct appeal and habeas petition, but efforts to obtain discovery into the matter were denied at every level.

The Court began its opinion by noting "From beginning to end, judicial proceedings conducted for the purpose of deciding whether a defendant shall be put to death must be conducted with dignity and respect."

The Court remanded the matter for further proceedings to determine whether an evidentiary hearing on the nature and possible prejudicial effect of the contact was appropriate.

The opinion, issued January 19, was unsigned. Roberts, Scalia, Thomas, and Alito dissented, asserting that the 11^th Circuit had ruled on other grounds.

Settling individual claims may not render class issues moot

cowdent@gtlaw.com (Tami Cowden) — Tue, 19 Jan 2010 10:01:36 -0800

In Narouz v. Charter Comm, LLC, the Ninth Circuit held that a class representative who voluntarily settles his or her individual claims in a putative class action does not necessarily render an appeal from a denial of class certification moot. If the class representative specifically retains an interest in the class litigation in the release agreement, then an appeal of class certification issues is not mooted.

Opinion issued Jan 15, authored by Smith, with concurring opinion by Korman. Rymer dissented on the basis of general language in the release.

Court reaffirms Frye as Nevada evidentiary standard.

cowdent@gtlaw.com (Tami Cowden) — Fri, 15 Jan 2010 10:29:21 -0800

The Court’s first published opinion of 2010, Higgs v. State, was initially released in May 2009, as an unpublished order. The Court rejected Higgs’ various challenges to his conviction for the murder of his wife, Kathy Augustine, including the argument that a failure to grant a continuance to allow a defense expert a longer opportunity to review the prosecution’s

The opinion was noteworthy for its extensive discussion of the different standards for admission of expert testimony presented by NRS 50.572 and the near identically worded FRE 702. Amicus curiae Nevada Justice Association moved for the publication of the ruling, which the Court granted.

Although in federal courts, the admission of expert testimony is governed by the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), in Nevada, the test of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) continues to be the appropriate standard. The Court noted that to the extent Daubert presents a flexible approach, it may be considered persuasive, but a mechanistic application of the factors cited in Daubert is not appropriate in Nevada courts.

Under Frye, expert opinion based on a scientific technique is inadmissible unless the technique has “gained general acceptance in the particular field in which it belongs.” Under Daubert, admissibility is based upon the testimony’s “relevance and reliability.” The difficulty of Daubert, however, is the tendency to apply the factors listed therein in a mechanical way, even those such factors were expressly not intended to be a definitive checklist, and would not even logically apply to situations outside scientific fields. In Higgs, the Court clarifies that admissibility standards for expert testimony in Nevada courts are not limited to the factors set forth in Daubert.

Hardesty drafted the 4-2 opinion, issued January 14, 2010. Pickering recused. Cherry and Saitta each filed separate dissents, with Cherry’s more strongly worded.

The dissents, however, were not directed at the Frye/Daubert debate, but instead, were directed at the Court’s conclusion that Higgs’s rights had not been violated by the denial of the continuance. Both Cherry and Saitta expressly concurred with the Court’s reaffirmance of Frye as the appropriate evidentiary standard.

Family Court has no jurisdiction over property dispute of cohabiting couples.

cowdent@gtlaw.com (Tami Cowden) — Mon, 04 Jan 2010 15:58:50 -0800

In Landreth v. Malik, the Nevada Supreme Court held that the family courts do not have jurisdiction to hear disputes over property ownership between unmarried couples. Here, the dispute involved a claim that the funds used to purchase and renovate a home in Nevada were joint funds of a couple who had cohabited, but never married. The Court’s ruling was based on the jurisdictional grant set forth in NRS 3.223, which does not include an action of the type here.

The statute is pretty straight forward. I do question the use of the word “meretricious” to describe the relationship between the parties, however. That word is commonly used to describe an unlawful sexual relationship. Meanings do change though, so perhaps this is an example.

Also, the impact of this decision on those who register as domestic partners, remains to be seen. SB 283 expressly provided that termination of such a domestic partner relationship would follow the requirements of NRS Chapter 125, which would fall within family court jurisdiction. However, domestic partners can terminate outside of Chapter 125 if the parties meet certain qualifications. One such requirement is the lack of community property, the determination of which lack could, of course, be precisely the issue to be decided . . .

Decided December 24, 2009. Douglas authored the opinion, with Parraguirre, Cherry, and Pickering concurring.

Hardesty dissented, with Saitta and Gibbons concurring.

Evidentiary standards for Indian Child Welfare Act issues determined

cowdent@gtlaw.com (Tami Cowden) — Mon, 04 Jan 2010 15:54:38 -0800

In In re the Parental Rights as to N.J., the Nevada Supreme Court held that a dual-standard burden of proof is appropriate for evidentiary findings in parental termination cases involving the Indian Child Welfare Act (ICWA), with the higher beyond-a-reasonable-doubt evidentiary standards of the ICWA used for ICWA-related findings, and Nevada’s clear-and-convincing evidence standard for state law findings. The Court also held that under specific circumstances, such as when the breakup of a Native American family is not at issue, application of the Existing Indian Family (EIF) doctrine, a judicially created exception to the ICWA, may be appropriate.

Decided December 24, 2009, 7-0 decision, authored by Saitta.

Pharmacists owe no duty to those injured by customers driving under influence

cowdent@gtlaw.com (Tami Cowden) — Mon, 04 Jan 2010 15:50:01 -0800

In Sanchez v. Wal-Mart Stores, the Nevada Supreme Court upheld the dismissal of the suit against pharmacists by persons injured by a pharmacy customer driving while under the influence of drugs dispensed through multiple prescriptions.

The Court held that pharmacists do not owe of duty to unidentifiable third parties. Because such third parties are not included in the group intended to be protected by pharmacy statutes and regulations, such third parties cannot not raise a negligence per se claim either.

Decided December 24, 2009. 5-2 decision. Opinion by Hardesty; Parraguire, Douglas, Gibbons, and Pickering concurring.

Cherry dissented, with Saitta concurring in the dissent. They would recognize a special relationship between a pharmacy and customer, based on the pharmacist’s professional standard of care, which includes an obligation to ensure that medications are dispensed only for medically necessary purposes.

Jury questionnaires public records

cowdent@gtlaw.com (Tami Cowden) — Mon, 04 Jan 2010 15:44:04 -0800

In Stephens Media v. Dist. Ct., the Court determined that the press may intervene in a limited fashion in criminal cases to assert first amendment rights. The Court also determined that juror questionnaires used in jury selection are presumptively subject to public disclosure. The case involved jury questionnaires from the O.J. Simpson case.

Decided December 24, 2009. Hardesty authored the opinion, which was 6-0. Pickering recused.

Procedures for challenging translations adopted

cowdent@gtlaw.com (Tami Cowden) — Thu, 03 Dec 2009 10:49:17 -0800

In Quanbengboune v. State, issued December 3, 2009, the Nevada Supreme Court adopted procedures for a defendant to make a claim that a court-appointed translator’s inaccurate translation affected the defendant’s due process rights.

If a motion for new trial is made, the parties should each have translators review the translated testimony for discrepancies. The District Court should appoint an independent translator to review the translations. In reviewing the translations, the court should consider whether the alleged inaccuracies or omission altered the context of the testimony, and if so, whether that alteration prejudiced the defendant.

If the inaccuracies are discovered during a pending appeal, a motion to correct the record should be made. The parties should again obtain translations, but if possible, stipulate as to which is most accurate. If the parties are unable to so stipulate, then the court should appoint an independent translator to review the translations. Copies of both translations should be preserved for appeal.

In this case, the Supreme Court determined that while the defendant’s testimony had been altered in some instances, he was not prejudiced by these alterations.

The new procedures are similar to those adopted in Baltazar-Monterrosa v. State, 122 Nev. 606, 616-17, 137 P.3d 1137, 1144 (2006), which addressed inaccuracies in translations of the defendant's statements to police.

The Court also determined that the District Court’s error in failure to instruct the jury as to afterthought robbery did not rise to the level of plain error.

Failure to present evidence of combat experience ineffective assistance of counsel.

cowdent@gtlaw.com (Tami Cowden) — Mon, 30 Nov 2009 11:41:48 -0800

Combat experience may warrant leniency, the Supreme Court ruled today.

In Porter v. McCollum, issued November 30, 2009, the U.S. Supreme Court found that defense counsel’s failure to introduce evidence of the Porter’s frontline engagement in two battles in the Korean War as mitigation during the penalty phase of the trial was ineffective assistance of counsel. Defense counsel failed to investigate potential mitigating evidence, and was therefore ineffective. The court stated,

Had Porter’s counsel been effective, the judge and jury would have learned of the “kind of troubled history we have declared relevant to assessing a defendant’s moral culpability.” . . . They would have heard about (1) Porter’s heroic military service in two of the most critical—and horrific—battles of the Korean War, (2) his struggles to regain normality upon his return from war, (3) his childhood history of physical abuse, and (4) his brain abnormality, difficulty reading and writing, and limited schooling.

In finding that the state court had unreasonable applied Strickland in finding that the evidence of Porter’s war efforts would not have influenced the outcome, the Supreme Court stated

Our Nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did. Moreover, the relevance of Porter’s extensive combat experience is not only that he served honorably under extreme hardship and gruesome conditions, but also that the jury might find mitigating the intense stress and mental and emotional toll that combat took on Porter.

The decision was per curiam.

This decision came two weeks after the U.S. Supreme Court reversed the Ninth Circuit’s conclusion that omission of mitigation evidence had been ineffective assistance in Wong v. Belmontes. However, in Belmontes’s case, the omission of the mitigating evidence had been a strategic decision made necessary by the extremely aggravating evidence -- i.e., another murder -- for which the mitigating evidence would open the door.

Google adds legal opinion search engine

cowdent@gtlaw.com (Tami Cowden) — Mon, 30 Nov 2009 10:35:00 -0800

Google now offers a search engine containing legal opinions. To get to the search engine, click on Google Scholar and select "legal opinions and journals."

The database includes U.S. Supreme Court decision dating back to 1791; federal appellate, district, tax and bankruptcy court opinions from 1923 onward, and every state court decision since 1950. Searches are available based on citation, keyword and topic. Full text of opinions are accessible, and there are even links to other opinions where the cases are cited.

I don't think I'll be giving up my access to West or Lexis based on this free service, but it will come in handy for short searches and for those times when I don't have passwords with me.

I haven't had much luck with it for finding full texts of articles, though.

Nevada's Anti-SLAPP applies to federal discrimination claims

cowdent@gtlaw.com (Tami Cowden) — Mon, 30 Nov 2009 10:30:16 -0800

In John v. Douglas County School District, issued November 25, 2009, the Nevada Supreme Court held that Nevada’s anti-SLAPP statute, NRS 41.637, applies to federal causes of action because it is a neutral and procedural statute that does not undermine any federal interest.

Anti-SLAPP (Strategic Lawsuits Against Public Participation) statutes protect against meritless lawsuits that are filed “primarily to chill the defendant’s exercise of First Amendment rights.” Such suits generally involve actions brought against persons who have engaged in good faith communications in furtherance of the right to petition the government. Nevada’s anti-SLAPP statute allows the defendant in such an action to bring a special motion to dismiss showing that statements made were truthful or made without knowledge of falsehood, or regard a matter of concern to the government entity.

Here, the underlying action as brought against the school district and certain employees following the discipline of John, a former employee of the school district. John had alleged that his discipline for unprofessional conduct and sexual harassment and the statements made by the defendant employees in the disciplinary procedures, were motivated by religious and disability discrimination. The defendants brought forth evidence that the communications involved in the discipline were brought in good faith, and John was unable to rebut that evidence.

En banc, 7-0 decision, opinion by Gibbons.

Void malpractice complaint can't be salvaged by amendment

cowdent@gtlaw.com (Tami Cowden) — Mon, 30 Nov 2009 10:19:43 -0800

If you are filing any sort of medical malpractice claim, do not forget to include that expert affidavit. You need it, unless res ipsa applies.

In Fierle v. Perez, announced November 19, 2009, the Nevada Supreme Court held that, pursuant to NRS 41A.071, where a complaint has claims for medical malpractice against professional medical corporations and claims of professional negligence against medical providers, the failure to include an expert affidavit attesting to such malpractice or negligence renders that complaint void ab initio as to such claims. However, if any claim in the complaint falls with the res ipsa loquitur exception in NRS 41A.071, no affidavit is required as to such claim, and that claim survives. Attaching an affidavit to an amended complaint cannot cure the defect in the void claims, even where some claims in the same complaint survived.

En banc, opinion by Cherry.

Pickering, dissenting in part, took issue with the application of the affidavit requirement to all claims of professional negligence by medical providers, and also with the majority's conclusion that the claim against a technician who performed the procedure resulting in the injury fell within the res ipsa exception, while claims regarding the negligent supervision and training of that technician did not.

Court rules on international custody determinations

cowdent@gtlaw.com (Tami Cowden) — Mon, 30 Nov 2009 10:16:36 -0800

In Ogawa v. Ogawa, announced Nov. 12, 2009, the Nevada Supreme Court decided two issues related to child custody and one issue related to entered a default divorce decree. The case involved children taken to Japan for what the mother testified was to be a three month vacation. However, at the conclusion of the three months, the father did not return the children. The District Court determined that Nevada was the children’s home state under the UCCJA, and ordered their return. The Court also ordered the entry of a default divorce decree

The Court determined that where evidence supports a finding that minors lived in the state with a parent who still resides here within six months before the commencement of the custody proceeding, without regard to temporary absences, then exercise of jurisdiction as the minor’s home state is appropriate. The Court also found that while the from the state was intended to be temporary, such temporary absence does not interfere with the six month residency.

The Court also upheld an order for the children to be returned to the jurisdiction. Although the District Court’s reliance on the Hague Convention was inapplicable, as Japan has not signed that convention, the UCCJA analysis is applicable.

However, the Supreme Court did take exception to the default decree entered here, as the other parent had filed an answer and appeared through counsel.