The Public Lawyer

The Public Lawyer P u b l i c L a w ye r s Nevada Supreme Court Cases S e c t i o n to apply. Winter 2013 - 14 Moon v. McDonald, Carano & Wilson, L.L.P. , Khan v. Bakhsh, 129 Nev. Brett Kandt, 129 Nev. Adv. Op. No. 56 Adv. Op. No. 57 (August 1, C h a i r (August 1, 2013) – The Court 2013) – The Court reverses a affirms a district court judg- district court judgment after ment dismissing appellants' a bench trial in a contract complaint in a legal malprac- and tort action and remands tice action, ruling that 1) un- with instructions. At trial, der NRS 11.207(1), the stat- the district court excluded ute of limitations for a legal under the statute of frauds malpractice claim commences certain evidence the Khans on the date the plaintiff dis- presented of an allegedly covers, or through due dili- written, but lost or destroyed, gence should have discov- agreement to purchase a cer- ered, the material facts that tain restaurant and land constitute the cause of action; from Bakhsh. The Court 2) the statutory limitation rules that 1) the district period for a claim of legal court erred in that the stat- malpractice involving the ute of frauds does not apply representation of a client to a writing that is subse- during litigation does not quently lost or destroyed, and commence until the underly- oral evidence is admissible to ing litigation is concluded prove the existence and Inside this issue: [citing Hewitt v. Allen, 118 terms of that lost or de- Nev. 216, 221, 43 P.3d 345, stroyed writing; 2) the dis- 348 (2002)]; and 3) an attor- Nevada Supreme 1 trict court further erred when Court Cases ney's alleged negligence in it improperly excluded evi- representing a creditor in the dence concerning whether a 9th Circuit Court 13 of Appeals Cases non-adversarial parts of a prior agreement was induced bankruptcy proceeding does by fraud or modified by a not constitute litigation mal- U.S. Supreme 14 subsequent agreement be- Court Cases practice causing the so-called cause the parol evidence rule Hewitt litigation tolling rule Winter 2013-14 Page 2 Nevada Supreme Court Cases does not preclude such evidence; and 3) be- substantially outweigh their probative cause actual damages were ascertainable value; 2) Holmes was not deprived of a fair and the liquidated damages provision oper- trial by the admission into evidence of a ated as a penalty, the district court erred coconspirator's out-of-court statement that by awarding liquidated damages. Holmes "went off' and "just started shoot- ing" since an abuse of discretion amount- State v. Greene, 129 Nev. Adv. Op. No. 58 ing to plain error does not appear in the (August 1, 2013) – The Court reverses a record; and 3) Holmes was not deprived of district court order granting respondent's a fair trial by the admission into evidence untimely and successive fifth post- of unwarned statements that Holmes conviction petition for a writ of habeas cor- made to the Nevada detectives who inter- pus after a hearing at which the district viewed him in California before his arrest, court determined that respondent Greene since the interrogation was not custodial received ineffective assistance of counsel at and the district correctly found that the his resentencing hearing and directed statement was voluntary. Greene's counsel to draft the order granting the petition but refused to provide an Bradford v. Eighth Jud. Dist. Ct., 129 explanation for its decision. The Court re- Nev. Adv. Op. No. 60 (August 29, 2013) – iterates that when the district court directs The Court denies a writ petition challeng- a prevailing party to draft an order resolv- ing a district court order dismissing a di- ing a post-conviction petition for a writ of vorce complaint, ruling that petitioner habeas corpus, it must provide sufficient Geanie Bradford’s failure to timely appeal direction regarding the basis for its deci- the order precludes writ relief, since the sion to enable the prevailing party to draft validity of the parties' marriage was an the order; and rules that the district court issue capable of review on appeal and an erroneously determined that Greene estab- appeal would have been an adequate legal lished good cause sufficient to excuse the remedy. procedural bars to a consideration of his petition on the merits. State of Nevada v. Tatalovich, 129 Nev. Adv. Op. No. 61 (September 19, Holmes v. State, 129 Nev. Adv. Op. No. 59 2013) – The Court affirms a district court (August 22, 2013) – The Court affirms a order granting a petition for judicial re- jury conviction of first-degree murder and view of a Private Investigator's Licensing robbery, both with the use of a deadly Board decision, ruling that investigative weapon, ruling that 1) Holmes was not de- work undertaken for the purpose of devel- prived of a fair trial by the admission into oping and giving expert opinion testimony evidence of inflammatory rap lyrics he in a Nevada civil court case does not re- wrote while in jail in California that de- quire a Nevada private investigator's li- scribe details that mirrored the crimes cense. charged, since the district court did not abuse its discretion in determining that the Loeb v. First Jud. Dist. Ct., 129 Nev. risk they carried of unfair prejudice did not Adv. Op. No. 62 (September 19, 2013) – Page 3 The Public Lawyer Nevada Supreme Court Cases The Court denies a writ petition challeng- torney fees and costs in a case regarding a ing a district court order denying a motion dispute over unpaid HOA property assess- to serve individual defendants by publica- ments, the Court affirms in part, reverses tion. The Court rules that a party resid- in part and remands, ruling that while the ing outside of the United States whose for- district court was correct in determining eign address is known may not be served that most of McKnight's claims were sub- by publication pursuant to NRCP 4(e)(1)(i) ject to NRS 38.310 and should have been and (iii), but must be served under the submitted to a form of alternative dispute terms of the Hague Convention on Service resolution before being brought in district Abroad of Judicial and Extrajudicial Docu- court, the district court erred to the extent ments in Civil or Commercial Matters in that it dismissed McKnight's claim for qui- one of the following manners: 1) "through et title because that claim was not subject the central authority of the receiving to NRS 38.310. The Court reverses the dis- country," 2) "through diplomatic or consu- missal of McKnight's quiet title claim and lar agents that the receiving country con- the district court's order denying the mo- siders nonobjectionable." or 3) "by any tion to set aside the trustee's sale. method permitted by the internal law of the receiving country" [citing Dahya v. Nev. Pub. Emps. Ret. Bd. v. Smith, 129 Second Judicial Dist. Court, 117 Nev. 208, Nev. Adv. Op. No. 65 (October 3, 2013) – 212, 19 P.3d 239, 242 (2001)]. The Court reverses a district court order granting declaratory and other relief as to Vanguard Piping v. Eighth Jud. Dist. certain statutes governing the Public Em- Ct., 129 Nev. Adv. Op. No. 63 (September ployees' Retirement System in a case in- 19, 2013) – The Court denies a writ peti- volving interpretation of retirement eligi- tion challenging a district court order com- bility under NRS 286.541(2). The Court pelling disclosure of insurance policies. rules that the district court erred in its in- The Court rules that NRCP 16.1(a)(1)(D), terpretation of the controlling statute and which requires disclosure of any insurance in reviewing the PERS Board's decision de agreement that may be liable to pay a por- novo, rather than deferentially. Under tion of a judgment, compels disclosure of PERS interpretation of the statute, a mem- all insurance agreements, regardless of ber who goes from one PERS-eligible job to whether the policy limits exceed the another without a break in service and re- amount of potential liability or whether tiring from PERS may not thereafter retire the policies provide secondary coverage. and receive benefits from PERS, until the member effectively retires from his or her Adept Mgmt. v. McKnight Family, new PERS-eligible job. The district court L.L.P., 129 Nev. Adv. Op. No. 64 (October had disagreed and ruled that 1) NRS 3, 2013) – On consolidated appeals from a 286.541(2) determines retirement benefit district court order dismissing a complaint dates, not retirement eligibility; 2) PERS pursuant to NRS 38.310 and from a post- should have allowed respondent Douglas judgment order denying a motion for at- Smith to retire and receive benefits from Winter 2013-14 Page 4 Nevada Supreme Court Cases PERS based on his prior public service, rect dealings with the buyer to ensure the even after he was sworn in as a district completion of the transaction, but court judge, another PERS-eligible posi- that ,while the district court properly tion; and 3) under NRS 286.190(3)(a), awarded incidental and consequential PERS could and should have equitably ex- damages, it abused its discretion in cused Judge Smith's noncompliance with awarding attorney fees and that portion of NRS 286.541, and allowed him to reverse the judgment is reversed. his eventual election to transfer from PERS to the Judicial Retirement System St. Mary v. Damon, 129 Nev.

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