HOA Caselaw Update: Nevada Supreme Court Finds More Excuses for a Bank’s Failure to Tender

Author: Margaret Schmidt

Guest Editor: Salayha K. Ghoury

June 4, 2019 8:28am

The Nevada Supreme Court’s recent decision in Bank of America, N.A. v. Thomas Jessup, LLC Series VII, 135 Nev. Adv. Op. 7, 435 P.3d 1217 (Nev. 2019) (“Jessup”) represents the current departure from ideologies established in SFR Investments Pool 1 v. U.S. Bank, 130 Nev. 742, 750, 334 P.3d 408, 414 (Nev. 2014).  To contextualize the shift, it is beneficial to examine the statute at the heart of this ever-expanding body of law, NRS 116.3116.[1]   Since 1991, Nevada has provided homeowner associations (HOAs) with the statutory authority to impose a lien for unpaid assessments owed on a property.  Pursuant to NRS 116.3116, up to nine months of common expense assessments accrued under the lien are given priority over a first deed of trust.[2]  Considering the effect of a “superpriority” lien foreclosure for the first time, the Nevada Supreme Court reasoned in SFR Investments that such priority was created “to avoid having the community subsidize first security holders who delay foreclosure” of underwater properties. Thus, a bank risks losing its security interest by foreclosure of the superpriority lien if it fails to pay at least nine months of HOA assessments owed on a defaulted property.

Could Nevada provide a “Safe Zone” for Insurers to Test Cannabis Coverage Pilot Programs?

Author: Michaela Jester

Guest Editor: Salayha K. Ghoury

June 4, 2019 8:15am

Cannabis insurance coverage in Nevada: Timing is everything

Public perception of cannabis use has undergone significant change in a very short span of time. However, while a strong majority of Americans favor cannabis legalization for all purposes (i.e. – medical and recognition), the federal government’s classification of cannabis has yet to reflect its social acceptance. Because cannabis is still considered a schedule one drug at the federal level, alongside LSD and heroin, many cannabis entrepreneurs are hesitant to invest in the market just yet. As a result, the “green mine” awaiting to be excavated by way of the normalized commercial activity of cannabis sales remains untapped due to the fear rooted in breaking federal law. The American banking and insurance industries, along with property owners and service providers, are eagerly waiting on the sidelines to take advantage of the lush economic opportunities.

Changes in Nevada Rules of Civil Procedure Designed to Discourage Extensions of Discovery Deadlines and Trial Continuances

Author: Tom McGrath

Guest Editor: Chandra Roam

May 6, 2019 12:37pm

Earlier this year, the Nevada Supreme Court significantly amended the Nevada Rules of Civil Procedure to more closely mirror the Federal Rules of Civil Procedure.  Although the previous version of Nevada’s court rules was already similar to the Federal Rules, the amended rules seek to discourage counsel from submitting repeated requests for stipulated extensions to the court’s scheduling order and trial date.  The new rules went into effect on March 1, 2019.  Whether they apply to existing cases depends on whether the case already has a scheduling order or trial setting order in place.  In cases where the court issued the scheduling order after March 1, 2019, the new rules apply.

Nevada: At the Crossroads of UTSA Preemption and Policy Exclusions for Trade Secret

Author: Michaela Jester

Guest Editor: Chandra Roam

May 6, 2019 12:36pm

While laws concerning patent protection are addressed at the federal level and are uniform across the country, states are given latitude in regulating trade secret misappropriation. As heavy interstate commerce developed, a special challenge for the regulation of trade secret laws emerged: the balance between state autonomy and uniform application of the law across state lines. To balance state power and the need for consistency for trade secret protection holders, the Uniform Trade Secrets Act (“UTSA”) was offered to the states for adoption. Nevada, along with every other state, has adopted the USTA either directly or by enacting substantially similar language.

It Speaks for Itself: Medical Malpractice and Res Ipsa Loquitor

Author: Jenny Silverstein

Guest Editor: Chandra Roam

May 6, 2019 12:31pm

Over 10 years ago, my father underwent a double hip replacement and had four vertebrae in his spine fused together. Not all at once, but over a series of surgeries. The double hip replacement was a huge success. After he recovered from that surgery, he had the spinal fusion in the hopes of relieving his back pain. In the process of recovering from that surgery, he contracted a severe infection, which complicated his recovery. To this day, he still has to take medication as a result of the infection he contracted.

Court Provides Additional Clarity on Applying Nevada’s Anti-SLAPP Statute

Author: Christopher Lund

April 1, 2019 1:31pm

Pope v. Fellhauer, No. 74428 (Nev. March 21, 2019) (unpublished).

Background

In the last 3 years, the Nevada Supreme Court issued multiple decisions related to Nevada’s anti-SLAPP law and how the law should be applied in specific cases. SLAPP is a term that stands for “Strategic Lawsuit Against Public Participation.” The term denotes “a meritless lawsuit that a plaintiff initiates to chill a defendant’s freedom of speech and right to petition under the First Amendment.”

Nevada Bill to Allow “Textalyzer” Device to Scan Cellphones After Car Accidents and the Impact of the Proposal on Establishing Fault in Civil Cases

Author: Danielle Vukovich

Guest Editor: Christopher Schon

April 1, 2019 12:54pm

Nevada may become one of the first states to allow police to use a technology to find out if a driver was using a cellphone during a car accident.  Nevada Assembly Bill 200 seeks to introduce a device named “textalyzer,” which would grant police officers the ability to connect a driver’s cellphone to the device and check the driver’s recent activity.[1]

Jury Demand within Complaint is Insufficient in Nevada

Author: Christopher Lund

March 4, 2019 9:00am

Jake Lee v. Soon Yi Lee, 2019 WL 851994 (Nev. App. Feb. 19, 2019) (unpublished).

For most civil cases in Nevada, the parties have the option of having either a jury trial or bench trial. There are strategic reasons for why a plaintiff or defendant might choose a jury trial over a bench trial, and vice versa. For example, plaintiffs in personal injury cases will almost always demand a jury because jurors are more likely to award a larger sum in damages than a judge in a bench trial. Conversely, in some highly technical civil cases, a plaintiff may prefer a judge to render a decision rather than a jury, where the plaintiff’s focus or desired outcome is not necessarily on damages.

Using Criminal Backgrounds in a Civil Case

Author: Kristin Mathis

Guest Editor: Alla Policastro

March 4, 2019 9:00am

NRS 50.095: Impeachment by Evidence of Conviction of Crime

  1. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime is admissible but only if the crime was punishable by death or imprisonment for more than 1 year under the law under which the witness was convicted.

Tips to Steer Clear of the Lackluster Depo

Author: Kathryn Lee

Guest Editor: Alla Policastro

March 4, 2019 9:00am

After taking a certain number of plaintiffs’ depositions in one’s career, it can be easy to just coast and go through the motions; getting in and getting out after you have the main information you need. However, once trial comes around, you may be kicking yourself for not asking a few crucial questions that could help support and shape the defense of your case. While the questions posed below are not necessarily commonplace or appropriate in every case, they can help to illuminate certain key issues plaintiffs are would like to avoid.  

Beauty is in the Eye of the Beholder: An Update on Anti-slapp Lawsuits in Nevada

Author: Jenny Silverstein

Guest Editor: Brittany Torrence

February 4, 2019 11:00am

In July, 2018, an article was written discussing the Anti-SLAPP lawsuits in Nevada and the Druscilla Thyssen v. Martin Crowley matter. In that case, Defendant Crowley was plaintiff Thyssen’s attorney. The attorney-client relationship broke down and ended in hostility. Plaintiff wrote various complaints to the Nevada State Bar regarding her former attorney. In response to plaintiff’s complaints, defendant Crowley sued plaintiff asserting claims for money he alleged he was owed. He also alleged tortious breach of contract, unjust enrichment, and quantum meruit.

Using the Sword – Offers of Judgment in Nevada

Author: Christopher Schon

January 7, 2019 9:00am

An Offer of Judgment, when used properly, is a vital tool in the litigator’s toolbox. Timing, purpose, and potential benefits and detriments all must be considered prior to deploying your Offer of Judgment. But keep in mind, even with those factors considered, a court could invalidate your Offer of Judgment if it is non-compliant.

Insurance and Autonomous Vehicles

Author: Rachel Donnelly

January 7, 2019 9:00am

It is no surprise the landscape of transportation is drastically changing. With the advancements in technology, vehicles are becoming autonomous. Consumers will soon have the option to buy a vehicle they will not need to actually drive. Also, people looking for transportation to travel from one place to another no longer need to call a traditional taxi service. Individuals can now take advantage of one of the many ride-sharing or peer-to-peer programs available on their smartphones. Autonomous and semi-autonomous vehicles are at the forefront of technological development in the automobile industry.

Statutory Exceptions to Nevada’s Collateral Source Rule

Author: Grace Song

December 3, 2018 9:00am

The collateral source rule provides, if an injured party received compensation for his or her injuries from a source independent of the tortfeasor, this payment should not be deducted from damages which plaintiff would otherwise collect from the tortfeasor. (Proctor v. Castelletti, (1996) 112 Nev. 88, 90 n.1, 911.) While California has departed from the collateral source rule since Howell v. Hamilton Meats, Nevada courts still strictly adhere to it, with few exceptions.

Planting the Seeds of Discussion

Author: Michaela Jester

December 3, 2018 9:00am

Nevada legalized both recreational and medical cannabis by a 2016 ballot initiative, and in doing so joined a growing number of states with similar changes in legal philosophy. As an industry trailblazer, the Silver State benefited from a $529.9 million “green” rush in taxable sales during the first fiscal year alone, with the state receiving its share of nearly $70 million in taxable revenue (enabling a substantial earmarking for education and the “Rainy Day” contingency fund).  Additionally, Nevada’s boon resulted in an economic growth of $989.7 million through cannabis-based auxiliary businesses and an income increase of $443 million by virtue of the 8,300 full-time equivalent jobs created to meet industry demands.

Working Your Fingers Down to the Bone: Employee Workers’ Compensation Claims and the Employer Duty to Render Medical Assistance

Author: Jenny Silverstein

November 5, 2018 9:00am

Most workers in the United States would say they are overworked, underpaid, and are suffering from too much stress due to a variety of issues. In addition, the food we eat is overly processed and we drink sugar-loaded caffeinated drinks as if they were water. All of these things contribute to health problems most working adults endure including obesity, high blood pressure, insomnia, migraines, and stress-related illnesses.

Beattie, Brunzell, and Hourly Bills

Author: Margarite Sullivan

Guest Editor: Catie R. Johnson

October 1, 2018 10:00am

The Court of Appeals of Nevada reminded all Nevada litigators a Nevada Rule of Civil Procedure 68 offer should not be made or rejected lightly. In O’Connell v. Wynn Las Vegas, LLC 134 Nev. Adv. Op. 7 (Nev. App. 2018), Plaintiff was visiting Wynn Las Vegas when she slipped and fell. Wynn offered Plaintiff $3,000 to settle the case despite Plaintiff’s disclosure of $33,000 in medical damages. Plaintiff rejected Wynn’s $3,000 offer and submitted a counter-offer for $49,999, which included interest, costs, and attorney fees.  Wynn rejected the offer and the case proceeded to trial where the jury found in Plaintiff’s favor, assigning 60% liability to Wynn and 40% to Plaintiff and leaving Plaintiff with a $240,000 judgment. Plaintiff then moved for reimbursement of her post-offer fees and costs to the tune of $96,000. Wynn opposed Plaintiff’s motion by arguing Plaintiff’s failure to provide billing records precluded Plaintiff from recovering the post-offer fees and costs. The District Court agreed and Plaintiff appealed.

NRCP 68

The Impact of Nevada’s Affirmative Initial Disclosure Obligations on Discovery

Author: Tom McGrath

Guest Editor: Catie R. Johnson

October 1, 2018 10:00am

In some jurisdictions, a party to a civil lawsuit is not required to disclose documents or other evidence unless and until another party in the case directs discovery requesting/demanding the same. However, Nevada imposes an obligation on all parties in a civil lawsuit to serve initial disclosures of witnesses and exhibits and produce copies of all non-privileged relevant documents before the parties are permitted to engage in discovery.  And for defendants, Nevada law requires their initial disclosures to include complete copies of all potentially applicable insurance policies, regardless of the potential liability exposure in the case.

Tyson & Mendes Wins in Nevada: Insurer Granted Summary Judgement in Potentially High-Exposure Bad Faith Lawsuit

Author: Christopher Lund, Tom McGrath

Guest Editor: Leslie Price

September 5, 2018 9:00am

Last month the federal district court of Nevada granted United States Liability Insurance Company (USLI) summary judgment in an action filed against USLI for bad faith denial of a claim. Tyson & Mendes represented USLI in this case. The lawsuit centered around USLI’s denial of coverage for damage to the claimant’s property based on exclusionary language found in the insurance policy.

No Coverage for Reimbursement of Fraudulent Credit Card Charges

Author: David Roper

September 5, 2018 9:00am

In CP Food & Beverage, Inc., the U.S. District Court for the District of Nevada ruled an insurance company had no duty to indemnify a strip club, which reimbursed patrons for credit card charges fraudulently placed on their cards by employees of the club. The court held, the club’s reimbursement of the fraudulent charges did not constitute a direct loss by the club. CP Food & Beverage, Inc. v. United States Fire Insurance Company (2017 WL 6998968)

Nevada Supreme Court Disrupts Ninth Circuit’s Bourne Valley Decision by Holding HOA Foreclosure Statutes do not Offend Due Process

Author: Grace Song, Margaret Schmidt

Guest Editor: Leslie Price

September 5, 2018 9:00am

In a much anticipated decision, the Nevada Supreme Court finally put to rest the question of whether Nevada’s homeowner association (HOA) lien foreclosure statutes require notice to junior lienholders.  The Nevada Supreme Court’s unanimous en banc holding in SFR Investments Pool 1, LLC v. Bank of New York Mellon, 134 Nev. Adv. Op. 58 (2018) explicitly denounced the Ninth Circuit Court of Appeals’ prior construction of such statutes, and established new precedent for lower state and federal courts.

Movin’ on Through an Impasse at Mediation

Author: Kathryn Lee

Guest Editor: Jessica Heppenstall

August 6, 2018 9:00am

We have all been there. It is the standstill during mediation where it seems there is no way a settlement is going to be reached, and you feel as though you have reached the point of no return. However, with a few simple strategies and considerations, you may be able to breach this impasse and move on with meaningful settlement discussions.

Quit or Be Fired Means No Unemployment Benefits

Author: Christopher Lund

Guest Editor: Jessica Heppenstall

August 6, 2018 9:00am

Dolores v. State Employment Security Division, 134 Nev.Adv.Op. 34, 416 P.3d 259 (Nev. 2018).

Recently, the Nevada Supreme Court tackled a question of first impression related to unemployment benefits: Does an employee voluntarily resigns when the employer gives an ultimatum, quit or be fired? The Court unanimously ruled the resignation is voluntary, precluding unemployment benefits. Of course, the Court’s decision is not as black and white as it first appears.

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