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Mariscal-Ochoa v. State, 140 Nev. Adv. Op. 42 (Jun. 27, 2024)
Get PDFDuring voir dire, a prospective juror stated unclearly and quietly that she thought she recognized the defendant, Mariscal-Ochoa, as her nephew’s sexual abuser. She was struck for cause over Mariscal-Ochoa’s objections to strike the entire venire, and the lower court gave a curative instruction reiterating the presumption of innocence and clarifying the jurors’ role in disregarding uncharged acts. Mariscal-Ochoa was convicted for sexually abusing his nine-year-old stepdaughter after testifying. The Court affirmed, holding that the trial court was in the best position to determine whether prejudice was incurable during voir dire
Deutsche Bank Tr. Co. Ams. v. SFR Invs. Pool 1, LLC, 140 Nev. Adv. Op. 43 (Jun. 27, 2024)
Get PDFThe Supreme Court of Nevada considered whether a homeowner’s partial payments failed to satisfy the superpriority lien, meaning that the subsequent HOA foreclosure extinguished the first deed of trust. The Court examined the parameters set forth in Cranesbill which provided for allocation of a defaulting homeowner’s partial payments to an HOA superpriority lien. Court’s applying Cranesbill must: (1) look for direction of the homeowner allocating payment at the time payment was made, (2) then, if the homeowner fails to provide direction, a court must determine if the HOA allocated the payment prior to the dispute over the allocation, and (3) if the allocation by neither homeowner nor the HOA resolves the question, the court considers principles of justice and equity which presume that the superpriority lien is paid first, unless the court has a compelling reason to conclude otherwise. Here, after the Court’s analysis of Cranesbill, the Court held that absent express direction of the homeowner to the contrary, the HOA may not apply a payment in a way that jeopardizes the first deed of trust holder’s interest and deprives the homeowner of the security on the homeowner’s mortgage.
The Supreme Court of Nevada disagreed with the district court’s conclusion that the homeowner’s partial payments failed to satisfy the superpriority lien, meaning that the subsequent HOA foreclosure extinguished the first deed of trust. Therefore, the Court reversed the lower judgment and remanded for entry of judgment for Deutsche Bank
B.S. V. DIST. CT. (SIMEK), 140 Nev. Adv. Op. 46 (Jun. 27, 2024)
Get PDFThis case pertains to an emergency original petition for a writ of mandamus challenging a district court ruling that denied a petition for temporary guardianship over a minor child. The lower court relied on NRS 159A.052 which provides for temporary guardianships of minors who need immediate medical attention when justifying its denial. However, the Supreme Court held that the lower court failed to consider NRS 159A.053, which provides for temporary guardianships of minors for other good cause. Thus, the lower court manifestly abused its discretion, and the Supreme Court granted the petition
The EU Geo-Blocking Regulation: A Commentary
Get PDFProfessor Trimble delivered a presentation for the Centre for Legal Innovation and Digital Society at the Chinese University of Hong Kong. This was an invitation to present Professor Trimble\u27s book The EU Geo-Blocking Regulation: A Commentary (Edward Elgar Publishing, 2024) at the university\u27s 16th Law & Digital Society Book Talk
No Really, What Should We Do? An Employer’s Guide to Groff v. Dejoy and Juggling Religious Accommodations in the Workplace
Get PDFde Becker v. UHS of Delaware, Inc., 140 Nev. Adv. Op. 58 (Sept. 19, 2024)
Get PDFWhen a negligence claim alleges providers of health care were negligent when rendering services in a professional relationship, the proper claim is of professional negligence requiring an expert affidavit under NRS 41A.071. As pertaining to informed consent, a claim only constitutes battery if a plaintiff claims not to have consented at all to the treatment or procedure. Where a plaintiff consented to a particular treatment or procedure, and a question arises regarding whether the scope of that consent was exceeded, an expert medical affidavit is necessary under NRS 41A.071. The Supreme Court of Nevada clarified that when an accompanying expert declaration fails to satisfy the statutory requirements under NRS 41A.071 by failing to properly identify the defendant and specifically allege the negligent acts of that defendant, the complaint may not be amended and must be dismissed. Where the Public Readiness and Emergency Preparedness Act (“PREP Act”) is invoked, a professional negligence claim will be statutorily barred under 42 U.S.C. § 247d-6d if an allegation is caused by a named countermeasure. The Court correspondingly affirmed the District Court’s dismissal of the complaint
AmTrust North America, Inc. v. Ramon Vasquez, Jr., 140 Nev. Adv. Op. 61 (Sept. 19, 2024)
Get PDFPrior to AmTrust, Nevada courts were guided not by statute, but by common law, when assessing the degree to which an insurer may assert a claim to damages its insured worker obtained from a third party. One case required courts to use a formula, making insurers bear a portion of the litigation fees and costs when the insurer did not timely intervene.The other limited the portions of the settlement against which insurers could assert a claim, in conflict with the language of NRS § 616C.215.The Court in AmTrust held that the Breen formula is unworkable and that both Breen and Poremba were fundamentally in conflict with the plain language of NRS § 616C.215. Thus, the Court held that moving forward, litigants and courts should focus solely on the statutory language. This decision enforced an insurer’s right to recover from the total amount of a third-party settlement
Willard v. Berry-Hinckley Indus., 139 Nev. Adv. Op. 52 (Nov. 23, 2023)
Get PDFIn an en banc decision, the Nevada Supreme Court affirmed district court orders denying relief under Nevada Rule of Civil Procedure 60(b). The Court held that, for the purposes of NRCP 60(b)(5), orders of dismissal do not apply “prospectively” because an order of dismissal does not have continuing consequences that warrant equitable relief when dismissed with prejudice. The Court also affirmed the denial of motions under NRCP 60(b)(1) and NRCP 60(b)(6), holding that the district court did not abuse its discretion because there was substantial evidence in the record to support the findings
Taylor v. Brill [State of Nevada], 139 Nev. Adv. Rep. 56 (Dec. 21, 2023)
Get PDFFirstly, the Court in this case considered whether defendants to a medical malpractice action may present evidence concerning the plaintiff\u27s informed consent or assumption of the risk when the plaintiff does not raise a claim based on lack of informed consent. Furthermore, it held that assumption-of-the-risk evidence can be relevant in instances where a plaintiff’s consent to the procedure is challenged, but neither the defense nor evidence of informed consent is admissible in a medical malpractice action, where the plaintiff’s consent is uncontested. Secondly, the Court considered whether a plaintiff must use expert testimony to show that the medical damages they seek are reasonable and customary, finding that expert testimony is not required when other evidence shows reasonableness. Thus, informed consent evidence is inadmissible and an assumption-of-the-risk defense is improper in professional negligence suits when the plaintiff does not challenge consent
