Published Supreme Court of Nevada DECISIONS
by Marquis & Aurbach Attorneys

Countrywide Home Loans, Inc. v. Thitchener, 124 Nev. Adv. Op. No. 64 (2008). AUDIO OF ORAL ARGUMENTS (MP3 format 34MB)

In upholding an award of $968,070.00 in punitive damages against Countrywide, the Supreme Court clarified that implied malice is an independent basis to award punitive damages. The Court explained that conscious disregard, which is the mental element for proving implied malice, does not need to be supported by evidence of actual knowledge of intent to harm. Instead, to establish conscious disregard, there only needs to be some conduct that goes beyond mere recklessness or gross negligence. The Supreme Court also clarified that testimony at trial coupled with documentary evidence of converted personal property is sufficient to establish the special value of the personal property.

D.R. Horton, Inc. v. Eighth Judicial District Court, 123 Nev. Adv. Op. No. 45, 168 P.3d 731 (2007). AUDIO OF ORAL ARGUMENTS (WMA format 16MB)

In determining the sufficiency of a pre-litigation notice of constructional defects under NRS 40.645, the Court established the reasonable threshold test. In weighing a contractor’s right to repair alleged constructional defects against a homeowner’s right to rely upon a valid representative sample of constructional defects within a community of multiple residences, the Court provided minimum testing standards. The Court also clarified that the District Court has broad discretion to determine the validity of a notice of constructional defects.

Bacher v. State Engineer, 122 Nev. Adv. Op. No. 95, 146 P.3d 793 (2006).

Although NRS 533.370(6)(a) allows for an application for water based upon third-party beneficial use, the expected use cannot be speculative. The Court adopted the anti-speculation doctrine, which requires a showing of beneficial use and the applicant must have a contractual or agency relationship with the third party. Because the State Engineer approved a water transfer from Sandy Valley to Primm without any specification of the intended beneficial use of the appropriation, the Court reversed, finding that there was a lack of substantial evidence to support the State Engineer’s approval of the application.

Zhang v. Eighth Judicial District Court, 120 Nev. 1037, 103 P.3d 20 (2004).

A second real property purchase agreement is unenforceable when it is executed only because the seller would not perform under a previous purchase agreement which contained a lesser price. Under the preexisting duty rule, which is recognized in Nevada, a seller of real property cannot revoke one contract and simultaneously execute another similar contract for a greater price.

Health Plan of Nevada, Inc. v. Rainbow Medical, LLC, 120 Nev. 689, 100 P.3d 172 (2004).

An arbitration award should be enforced if the arbitrator is arguably construing or applying the contract and does not exceed his powers or manifestly disregard the law. If there is justification for the award, the award should be confirmed. Additionally, a remand by the district court to an arbitrator to allow an arbitrator to explain his decision is not permitted under Nevada statutes or at common law.

U.S. Design & Construction Corp. v. International Brotherhood of Electrical Workers, 118 Nev. 458, 50 P.3d 170 (2002).

While the plain language of NRS 608.150 grants the right of enforcement to the district attorney for recovery of labor costs due to subcontractors, the language of the statute does not preclude or explicitly exclude a private right of enforcement from the aggrieved subcontractors.

Musser v. Bank of America, 114 Nev. 945, 964 P.2d 51 (1998).

A termination clause in a lease without accompanying language regarding how any compensation award for condemnation proceedings is to be allocated, is sufficient to bar a lessee’s claim to part of the award. When interpreting contracts, every word should be given effect if possible, and contracts should be construed to avoid rendering portions of them unnecessary.

Executive Management, Ltd. v. Ticor Title Insurance Co., 114 Nev. 823, 963 P.2d 465 (1998).

A judgment entered in a previous action in which parties were co-defendants but did not file permissive counterclaims did not have a claim preclusion effect, which is a separate issue of whether a former judgment has a preclusive effect on claims in the new lawsuit. Abuse of process is not usually a compulsory counterclaim.

Langman v. Nevada Administrators, Inc., 114 Nev. 203, 955 P.2d 188 (1998).

The District Court and the Supreme Court review an administrative decision to determine if the decision was arbitrary and capricious, and thus an abuse of discretion. The decision of an administrative agency is not arbitrary and capricious if it is supported by substantial evidence. When an employee is injured and seeks insurance coverage from his employer, the Court applies the version of NRS 616.545 that was in effect at the time of the request to reopen the claim.

NGA #2 Limited Liability Company v. Rains, 113 Nev. 1151, 946 P.2d 163 (1997).

Summary judgment is inappropriate when there are issues of material fact regarding whether the seller should be estopped from asserting that buyer breached the contract and whether the seller waived the breach by the seller’s silence. After the date required for performance, the seller waited nine months to attempt to cancel the transaction. During those nine months the seller remained silent about the deadline while continuing to assist in the transaction. These actions could have constituted a waiver of the date required to perform.

Hudson v. Horseshoe Club Operating Co., 112 Nev. 446, 916 P.2d 786 (1996).

In an industrial injury case, any reasons for an injured employee’s discharge which are unrelated to the injury — such as misconduct, strike, or economic conditions — are relevant only if the evidence shows that they, rather than the injury, caused the employee’s inability to secure subsequent work. An employer who discharges an injured employee for cause is not liable for that employee’s disability benefits unless the record establishes that the employee’s disability, rather than her discharge, caused her wage loss or inability to obtain work.

Mays v. Eighth Judicial District Court, 111 Nev. 1172, 901 P.2d 639 (1995).

The Supreme Court issued a writ of mandamus compelling the District Court to credit Petitioner with time for his prior parole and to recalculate his sentence in light of his parole credit. It was fundamentally unfair for the State to refuse to give Petitioner credit for his previous parole, and this continuous refusal constituted vindictive behavior and a violation of Petitioner’s due process rights.

Singer v. Chase Manhattan Bank, 111 Nev. 289, 890 P.2d 1305 (1995).

The Supreme Court declined to make an exception to the plain language of 15 U.S.C. § 1666i, which makes a credit card company liable for fraudulent purchases only when those purchases are within 100 miles from the address on the credit card. Additionally, NRS 18.010(2)(a) imposes the requirement that a prevailing party, whether plaintiff or defendant, obtain a money judgment before obtaining an award of attorney’s fees and costs.

J. Christopher Stuhmer, Inc. v. Centaur Sculpture Galleries, Ltd., Inc., 110 Nev. 270, 871 P.2d 327 (1994).

The best approach for courts to use in interpreting a contract that is ambiguous is to delve beyond the express terms of a written contract and examine the circumstances surrounding the parties’ agreement in order to determine the true mutual intentions of the parties. Only evidence that has been offered and admitted into evidence can serve to refute adverse evidence. In order for there to be a legal assignment of rights, the obligee must manifest an intention to transfer the right to another person.

Levinson v. Eighth Judicial District Court, 109 Nev. 747, 857 P.2d 18 (1993).

The recording of a lis pendens against real property is not an available remedy to a plaintiff merely seeking to enforce a personal or money judgment. There must be some claim of entitlement to the title of the real property to properly record a lis pendens. While a lis pendens can be filed against real property in some cases to avoid fraudulent conveyances or transfers, such a conveyance or transfer was not adequately demonstrated in this case.

Smith’s Food King No. 1 v. Hornwood, 108 Nev. 666, 836 P.2d 1241 (1992).

Under NRCP 63, a successor judge is required to rehear disputed evidence when the original judge has not issued competent findings of fact and conclusions of law. The rationale behind this is to prevent judges from passing judgment on the credibility of witnesses they have not seen.

Thompson v. City of North Las Vegas, 108 Nev. 435, 833 P.2d 1132 (1992).

The District Court improperly granted summary judgment because there were genuine issues of material fact regarding whether landowner’s knew that they could lose title to the subject property, and whether the landowner’s became aware that the subject property had been awarded to the City. Therefore, the landowners did not intentionally waive their rights because there was a genuine issue whether they had full knowledge of all the material facts.

KDI Sylvan Pools, Inc. v. Workman, 107 Nev. 340, 810 P.2d 1217 (1991).

The District Court erred when it certified its grant of summary judgment, which dismissed the plaintiff’s complaint, as final under NRCP 54(b) because the defendant’s unresolved counterclaims against the plaintiff arose from the same set of facts and transactions that gave rise to the plaintiff’s claims. As such, the unresolved counterclaims were too closely related to the plaintiff’s dismissed claims to allow final certification of the dismissal of the complaint. Additionally, there is no statutory right to appeal a decision to stay an execution of summary judgment.

Bivins Construction v. State Contractors’ Board, 107 Nev. 281, 809 P.2d 1268 (1991).

In a proceeding before the State Contractors’ Board, NRS 233B.123(4) expressly permits cross-examination on any matter, even when the matter was not covered in direct examination. The State Contractors’ Board denied a contractor due process of law by limiting the contractor’s cross-examination of a witness. Additionally, the Board does not have the authority to impose damages upon the parties.

Hornwood v. Smith’s Food King No. 1, 107 Nev. 80, 807 P.2d 208 (1991).

In determining compensatory damages for violation of a shopping center lease, the District Court should measure damages as the difference between the value of a shopping center immediately before and immediately after the breach that caused the injury. Therefore, a proper analysis is the value of the property with the anchor tenant less the value of the property without the anchor tenant. Prejudgment interest is only allowed where the damage is known or ascertainable at a time prior to entry of judgment, either by reference to amounts fixed by the contract, or from established market prices.

Thornton v. Agassiz Construction, Inc., 106 Nev. 676, 799 P.2d 1106 (1990).

Nevada Rule of Civil Procedure 9(c) does not require a party to specifically plead excuse; only a denial of performance needs to be specifically pled and with particularity. Furthermore, the purchaser in a vendor/construction contract can bring suit prior to paying the full purchase price when the vendor/contractor deviates substantially from the contract specifications.

Charlie Brown Construction Company, Inc. v. City of Boulder City, 106 Nev. 497, 797 P.2d 946 (1990).

Under Bolder City Municipal Code § 11-36-12(A), the City is required to collect a payment bond from a subdivider for public construction to ensure payment to subcontractors. The Code created a self- imposed duty upon Bolder City and the failure to collect the bond results in a meritorious negligence claim against the City.

Buck by Buck v. Greyhound Lines, Inc., 105 Nev. 756, 783 P.2d 437 (1989).

The “Good Samaritan” law at NRS 41.500, which provides an exemption from liability, is only applicable when an emergency exists and there are injured parties. The critical ingredients of an emergency situation are: suddenness, the unexpected, necessity for immediate action, and lack of time for a measured evaluation of alternative courses of action. In this case, the “Good Samaritan” law was inapplicable where a car was stalled on a highway, there was no traffic coming, and there was no injured party.

Brown v. Capanna, 105 Nev. 665, 782 P.2d 1299 (1989).

In a medical malpractice case, the Supreme Court of Nevada affirmed the rule that a plaintiff must demonstrate lack of informed consent through expert medical testimony. A doctor who has not personally performed a particular surgery can, nevertheless, be considered an expert when testifying about informed consent because the doctor would be aware of the risks and the alternative choices. Where a medical expert is not being asked his expert opinion on the cause of death or on some other factor of causation, the relevant inquiry is not measured by a reasonable degree of medical probability, but whether the defendant did not conform to the customary disclosure practice in the relevant community or to what a reasonable physician would disclose.

Ewing v. Bissell, 105 Nev. 488, 777 P.2d 1320 (1989).

Where there is a mutual mistake of fact in a purchase agreement for real property regarding the actual acreage of the land, and the land was a sale by the acre, as opposed to a sale in gross, an abatement of the purchase price is appropriate conforming to the quantity of land actually received.

Wiltsie v. Baby Grand Corporation, 105 Nev. 291, 774 P.2d 432 (1989).

Nevada recognizes the tort of retaliatory discharge when an at-will employee is terminated for reporting his supervisor’s illegal conduct. To find a retaliatory discharge tort, the employee’s firing must violate an established public policy. In this case, no public policy was violated when the employee reported the illegal conduct of his supervisor to the supervisor’s company superiors, instead of to the appropriate government authorities. This action was done in a private or proprietary manner, not a public one, and thus the employee was not protected.

Sutherland v. Gross, 105 Nev. 192, 772 P.2d 1287 (1989).

The Supreme Court of Nevada will not set aside findings of fact unless they are clearly erroneous and not supported by any evidence. When a defaulting defendant has a common defense with other co-defendants, and the validity of the plaintiff’s entire cause of action is called into question, a defaulting defendant may rely upon those common defenses made by co-defendants. Accordingly, a plaintiff cannot take judgment by default against a defendant for those particular causes of action when common defenses exist.

Hornwood v. Smith’s Food King No. 1, 105 Nev. 188, 772 P.2d 1284 (1989).

A landlord is entitled to consequential damages resulting from an anchor tenant breaching its lease agreement and the implied covenant of continuous operation. The measure of damages for this situation is equal to the value of the shopping center with the tenant lease less the value of the shopping center without the tenant lease.

Southern Trust Mortgage Company v. K & B Door Company, Inc., 104 Nev. 564, 763 P.2d 353 (1988).

When a mortgage company holds a deed of trust secured by real property, and the deed of trust requires that the mortgage company make obligatory advances to the developer of the property, the advances relate back to the deed of trust because they are obligatory. Because the advances relate back to the deed of trust, subsequently recorded mechanic’s liens do not have superiority over the mortgage company’s claims for the advances.

Flick Theater, Inc., v. City of Las Vegas, 104 Nev. 87, 752 P.2d 235 (1988).

The Las Vegas City Council, in enacting LVMC 19.74.040, intended to ban operation of any sexually-oriented business, including existing businesses, located within 1000 feet of any church or school. The City did not exceed its legislative authority because the ordinances in question did not conflict with the State statute.

Royal West Airways, Inc. v. Valley Bank of Nevada, 103 Nev. 652, 747 P.2d 895 (1987).

Even when a creditor uses non-UCC remedies to attach personal property, the creditor is still required to follow the obligations that Article 9 imposes on secured creditors. In this case, the creditor obtained a court-ordered writ of attachment against an airplane and became a secured party in possession of the security. As such, the creditor should not have the benefit of a perfected security interest while avoiding the obligations of secured creditors under Article 9. Thus, the creditor was liable, as an offset to its judgment, for neglect of the airplane and the change in its market value.

K Mart Corporation v. Ponsock, 103 Nev. 39, 732 P.2d 1364 (1987).

Contract and punitive damages are permitted when an employer engages in a bad faith discharge of an employee. Whether a bad faith discharge has occurred is a fact-specific inquiry which takes into account, among other things, the size of the employer and the motive for the termination. Tort liability for breach of the implied covenant of good faith and fair dealing occurs when the conduct of the employer goes well beyond the bounds of ordinary liability for breach of contract.

Leonard v. Stoebling, 102 Nev. 543, 728 P.2d 1358 (1986).

The decision of a homeowner association Architectural Control Committee to permit a two-story addition to a home was arbitrary because the Committee failed to take into account the view and aesthetics of the neighbors, as required by statute. Therefore, a mandatory injunction was an appropriate remedy because the monetary value of a view and aesthetics is very difficult to determine.

Campbell v. Campbell, 101 Nev. 380, 705 P.2d 154 (1985).

Any property placed in joint tenancy before July 1, 1979 is only subject to equal division, not equitable division, upon divorce. And, money given during a marriage is presumed to be a gift. This presumption can be rebutted by clear and convincing evidence, which must be something more than the testimony of the moving party.

Brown v. Brown, 101 Nev. 144, 696 P.2d 999 (1985).

In a divorce proceeding, the trial court erred when it granted the wife all the equity in the house because the husband cancelled his life insurance policy. The husband could cancel his life insurance policy because there was no decree directing him to maintain it. Therefore, the husband is entitled to half the equity in the house.

Southwest Gas Corporation v. Lear, 101 Nev. 120, 693 P.2d 999 (1985).

Nevada Administrative Code 703.775 authorizes the Public Service Commission to reopen a proceeding to take additional evidence before a final order is issued. Where a final order is appealed and remanded back to the Commission, the case is considered to be put back into the same position as if the Commission had not issued a final order.

Williams v. State, 99 Nev. 530, 665 P.2d 260 (1983).

A defendant in a criminal case is entitled, upon request, to a jury instruction on his theory of the case if there is some evidence to support it, no matter how weak or credible the evidence is.

Knox v. Dick, 99 Nev. 514, 665 P.2d 267 (1983).

A witness who testifies during judicial proceedings is not liable for defamatory answers to counsel’s questions. Also, statements made by witnesses in quasi-judicial proceedings are absolutely privileged; therefore, defamatory remarks made during those proceedings are also privileged.

Titanium Metals Corporation of America v. Clark County District Board of Health Air Pollution Control Hearing Board, 99 Nev. 397, 663 P.2d 355 (1983).

The administrative agency abused its discretion by imposing fines upon a corporation running air pollution control equipment when the agency failed to make any findings that the company was not in compliance with the statute.

Cheqer, Inc. v. Painters and Decorators Joint Committee, Inc., 98 Nev. 609, 655 P.2d 996 (1982).

A trial court confronted with cross motions for summary judgment may be at liberty in most circumstances to determine that the parties have thereby conceded that no material issues of fact remain. The mere filing of cross motions for summary judgment, however, does not automatically relieve the trial court of its obligations of determining whether there actually are genuine issues of material fact for trial.

Shapiro v. Pavlikowski, 98 Nev. 548, 654 P.2d 1030 (1982).

Personal jurisdiction over an out-of-state defendant is inappropriate where defendant’s conduct consists only of ordering products over the phone. Although personal jurisdiction arises from transacting business and negotiating commercial paper within the state, to have personal jurisdiction, the causes of action must arise from those acts.

Las Vegas Plywood and Lumber, Inc. v. D&D Enterprises, 98 Nev. 378, 649 P.2d 1367 (1982).

The mechanic’s lien statutes are remedial in character and should be liberally construed. Substantial compliance with the statutory requirements of a mechanic’s lien is sufficient to perfect the lien if the property owner is not prejudiced. Following the statute in every respect except posting the lien at the wrong location constitutes substantial compliance where the other party received notification of the lien.

Holmby, Inc. v. Dino, 98 Nev. 358, 647 P.2d 392 (1982).

Where a sales agreement and escrow instructions are not inconsistent with each other, they are considered supplementary and must be read together. Therefore, a provision in the escrow instructions indicating that time is of the essence makes it binding upon all parties.

Branda v. Sanford (Redd Foxx), 97 Nev. 643, 637 P.2d 1223 (1981).

In determining if words are slanderous and defamatory, the court must look at the words in context with all surrounding words. When viewed in context in which the words were said, if they are susceptible of defamatory construction the issue must be submitted to a jury.

Garden Park Townhouse Ass’n v. Homewood Builders, Inc., 97 Nev. 630, 637 P.2d 1214 (1981).

Under the Nevada Rules of Civil Procedure, Rule 41(e) requiring that a case be dismissed if it is not brought to trial within 5 years, the Court found that a Special Master’s actions consisting of meeting with lawyers at a building site, inspecting part of the site, and listening to what several unsworn persons had to say about the construction, and writing a letter that was not filed or served on all counsel did not constitute bringing a case to trial.

MacDonald v. Kassel, 97 Nev. 305, 629 P.2d 1200 (1981).

What constitutes the reasonable time period for performance on a contract must be determined from the nature of the agreement and the particular circumstances involved. Therefore, where parties entered into an oral agreement in which the seller would held title to land and the buyer paid for the land up until the buyer asked for the title, it was not necessarily unreasonable for the buyer to ask for performance of the oral contract 16 years after the agreement was made.

Cottino v. Harrison, 96 Nev. 682, 615 P.2d 246 (1980).

The Supreme Court reversed the dismissal of an amended complaint for reinstatement, back pay, and damages for wrongful termination because the record did not establish that the District Court considered plaintiff’s argument that he had acquired a property interest in his public employment and was entitled to due process before he could be terminated.

Schmidt v. Sadri, 95 Nev. 702, 601 P.2d 713 (1979).

If an affirmative defense is not pled, it is ordinarily deemed waived, and no evidence can be submitted relevant to that issue. However, a party’s failure to object to the introduction of evidence that supports a defense that was not actually pled as an affirmative defense in the answer constitutes an implied consent to the admission of other evidence on that defense. And, a general denial is treated as being sufficient to put matters in issue that arise by logical inference to the allegations of the complaint.

Luciano v. Marshall, 95 Nev. 276, 593 P.2d 751 (1979).

It is a violation of a citizen’s constitutional right to be free from unreasonable search and seizure when a sheriff seizes personal property pursuant to a search order entered “in pursuance of execution” of a civil judgment. NRS 21.050 provides that money judgments shall be enforced by execution; however, nowhere in NRS 21.270–21.340 does it authorize the sheriff to enter a residence to seize the property.

Gunlord Corporation v. Bozzano, 95 Nev. 243, 591 P.2d 1149 (1979).

A motion for summary judgment shall be submitted with supporting and opposing affidavits according to the Nevada Rules of Civil Procedure, Rule 56(e). The affidavits shall set forth facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavit. An affidavit that does not comply with these rules, when it is conclusory rather than factual, and does not reflect personal knowledge of the events, is legally insufficient, and the court may disregard such affidavits.